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Justinian I · The Digest of Justinian §39.2.17.pr-39.2.17.4

Liability for Denying Entry to Possession and Damage Assessment

Passage 6140 of 9271 · Latin

Summary

Ulpian discusses the liability and transmissibility of actions when a person under another's power, a proxy, or a guardian refuses entry to a possessor, and states how judges should assess threatened damage even if the property has been alienated.

[ULPIANUS libro quinquagensimo tertio ad edictum. ] §39.2.17.prSi quis missum in possessionem, cum esset in aliena potestate, non admiserit, plerique putant noxalem actionem eo nomine competere.
[ULPIAN in the fifty-third book on the Edict.] If anyone, while under another's power, has not admitted a person who has been put in possession, most authorities think that a noxal action is available on that account.
§39.2.17.1Quid deinde, si procurator prohibuerit, utrum in ipsum an in dominum dabimus? sed uerius est in ipsum dandam.
What then, if a procurator has forbidden [the entry]? Shall we grant the action against him himself or against the principal? But it is more correct that it should be granted against him himself.
§39.2.17.2Sed et in actore municipum tutore ceterisque, qui pro aliis interueniunt, idem erit dicendum.
But the same must also be said in the case of an agent of a municipality, a guardian, and others who intervene on behalf of others.
§39.2.17.3Actio ista, quae in factum est, perpetuo dabitur, et heredi et in heredem ceterasque itemque ceteris personis.
This action, which is based on the facts, will be granted for all time, both to an heir and against an heir, and likewise to and against other persons.
§39.2.17.4Iudex, qui de damno infecto cognoscit, etiam alienato praedio ab eo, cum quo actum fuerit, damnum aestimare solet omne, quodcumque ante iudicium contigit.
A judge who hears a case concerning threatened damage is accustomed, even if the estate has been alienated by the defendant, to estimate all damage whatsoever that occurred before the trial.

Notes

  1. §39.2.17.prcum esset in aliena potestate — A cum clause with the imperfect subjunctive, indicating the status of the subject *quis* in the conditional clause. It means that the person who refused admission was "under another's power" (patria potestas or dominica potestas), which raises the question of whether a noxal action (noxalis actio) lies against the head of the household.
  2. §39.2.17.1dandam — Ellipsis of *esse* with the gerundive *dandam* in an accusative and infinitive construction, agreeing in gender, number, and case with the preceding feminine noun *actio* (implied from the question *utrum in ipsum an in dominum [actionem] dabimus*).
  3. §39.2.17.3et heredi et in heredem ceterasque itemque ceteris personis — An asymmetrical but parallel structure showing the active and passive transmissibility of the action. *et heredi* (dative, "to the heir") refers to transmissibility to the plaintiff's heir; *in heredem* (*in* + accusative, "against the heir") refers to transmissibility against the defendant's heir. In the second half, *ceteras [personas]* (accusative, with *in* omitted) and *ceteris personis* (dative) parallel these two sides for other classes of successors.
  4. §39.2.17.4alienato praedio ab eo — Ablative absolute consisting of the noun *praedio* and the perfect participle *alienato*. The prepositional phrase *ab eo* refers to the agent (the defendant, *cum quo actum fuerit*) and modifies *alienato*.

Cite this passage

Justinian I, The Digest of Justinian §39.2.17.pr-39.2.17.4. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:39.2.17.pr-39.2.17.4

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