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Justinian I · The Digest of Justinian §39.2.30.pr-39.2.30.2

Security for Threatened Damage from Works under a Servitude

Passage 6154 of 9271 · Latin

Summary

Ulpian explains that the stipulation for threatened damage applies to work done on another's land by virtue of a servitude, and discusses, with reference to Labeo, whether a simple promise or a formal security is required for such work.

[ULPIANUS libro octogensimo primo ad edictum. ] §39.2.30.prDamni infecti stipulatio pertinet etiam, si quid eius operis, quod in fundo meo aquae ducendae causa fit, uitio damnum mihi contigerit: solet enim opus in alieno fieri, cum iure seruitutis, quam quis habet alieno agro impositam, opus in alieno faciat.
[ULPIANUS in the eighty-first book on the Edict.] The stipulation for threatened damage also applies if any damage should occur to me through a defect in that work which is being done on my land for the purpose of conducting water; for a work is customarily done on another's property when someone, by virtue of a right of servitude imposed on another's land, does work on another's property.
§39.2.30.1Utrum autem de hoc opere promittere an satisdare debeat, uideamus.
But let us see whether he ought to make a promise or to give security concerning this work.
mouet, quod in alieno facit: qui autem de alieno cauet, satisdare debet, qui de suo, repromittere.
The fact that he is doing it on another's land raises a question; for he who gives security concerning another's property must give security, while he who gives security concerning his own must make a simple promise.
unde Labeo putabat eum, qui modulorum aut riui faciendi causa opus faceret, etiam satisdare debere, quia in alieno solo faceret.
Hence Labeo thought that he who did work for the purpose of making water-gauges or a channel ought also to give security, because he was doing it on another's soil.
sed cum de opere, quod faciet, exigatur stipulatio, consequens erit dicere sufficere repromissionem: quodam modo enim de re sua cauet.
But since the stipulation is demanded concerning the work that he is going to do, the logical consequence will be to say that a simple promise is sufficient; for in a certain way he is giving security concerning his own affair.
§39.2.30.2Quod dictum est 'aquae ducendae causa', exempli gratia scriptum est: ceterum ad omnia opera stipulatio accommodabitur.
What has been said, namely "for the purpose of conducting water," was written by way of example; for the rest, the stipulation will be adapted to all works.

Notes

  1. §39.2.30.prdamni infecti — An objective genitive limiting the noun `stipulatio`. It literally means "of damage not yet done," referring to the security or stipulation against threatened or impending damage.
  2. §39.2.30.1mouet — Third-person singular present of `moueo`. Here it is used impersonally or elliptically to mean "it causes hesitation" or "it raises a question." The following `quod` clause ("the fact that he does [it] on another's land") serves as the subject.
  3. §39.2.30.1consequens erit dicere — The impersonal expression `consequens erit` ("it will be a logical consequence") takes the infinitive `dicere` ("to say") as its subject, which in turn governs the accusative with infinitive (Aci) construction `sufficere repromissionem` ("that a simple promise is sufficient").

Cite this passage

Justinian I, The Digest of Justinian §39.2.30.pr-39.2.30.2. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:39.2.30.pr-39.2.30.2

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