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Justinian I · The Digest of Justinian §39.1.22.pr

Death after Work Notice and Heir's Duty to Tolerate Demolition

Passage 6120 of 9271 · Latin

Summary

Explains the legal rule that when a person who received notice of a new work dies after building before the notice is remitted, his heir is not actively obliged to restore the work but must tolerate its demolition by the adversary.

[MARCELLUS libro quinto decimo digestorum. ] §39.1.22.prCui opus nouum nuntiatum est, ante remissam nuntiationem opere facto decessit: debet heres eius patientiam destruendi operis aduersario praestare: nam et in restituendo huiusmodi opere eius, qui contra edictum fecit, poena uersatur, porro autem in poenam heres non succedit.
[MARCELLUS, Digest, book 15.] He to whom notice of a new work was given, having performed the work before the notice was remitted, has died; his heir ought to provide to the adversary the tolerance of the work being demolished. For indeed, a penalty is involved in the restoration of a work of this kind on the part of him who acted contrary to the edict; furthermore, an heir does not succeed to a penalty.

Notes

  1. §39.1.22.prCui — The antecedent (demonstrative pronoun is) of the relative pronoun Cui is omitted; the entire relative clause Cui... nuntiatum est introduces the logical subject of the main verb decessit. opere facto is an ablative absolute ("the work having been done").
  2. §39.1.22.prpatientiam destruendi operis — patientiam ("tolerance, passive submission") is the accusative direct object of praestare. destruendi operis is a gerundive construction in the genitive ("of the work to be demolished"), modifying patientiam as a genitive of description or objective genitive. The whole phrase means "tolerance of the demolition of the work." The heir is not obliged to actively demolish it at his own expense, but must permit the adversary to do so.
  3. §39.1.22.preius, qui — The genitive pronoun eius is the antecedent of the relative clause qui contra edictum fecit. Grammatically, it could modify either opere ("the work of him who acted...") or poena ("the penalty of him who acted..."). Adopting the latter, the structure is poena [eius, qui...] uersatur in restituendo... ("the penalty of him who... is involved in the restoration..."), explaining the legal rationale that active restoration functions as a form of penalty.

Cite this passage

Justinian I, The Digest of Justinian §39.1.22.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:39.1.22.pr

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