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Justinian I · The Digest of Justinian §39.2.32.pr

Threat from a Common Building and Security Between Co-owners

Passage 6156 of 9271 · Latin

Summary

The text discusses whether a co-owner must provide security for threatened damage when a common building poses a threat to an individual's separate building, presenting the Sabinian view that no security is required if the damage can be remedied and expenses recovered through other actions (pro socio or communi dividundo).

[GAIUS libro uicensimo octauo ad edictum prouinciale. ] §39.2.32.prSi aedibus meis proximae sint aedes meae et tuae, quaeritur, an, si hae uitium mihi faciant, cauere mihi debeas pro damno propriarum mearum aedium, scilicet pro qua parte dominus existes.
[GAIUS in the twenty-eighth book on the Provincial Edict.] If my own house is next to a house belonging to me and you, the question arises whether, if the latter is threatening to cause damage, you ought to give me security against damage to my own separate house, that is, in proportion to your share as owner.
et hoc plerisque placet: sed mouet me, quod ipse meas aedes reficere possim et impensas pro socio aut communi diuidundo iudicio pro parte consequi.
And this is approved by most writers; but I am troubled by the fact that I myself can repair my house (the common one) and recover a share of the expenses by an action on partnership or for division of common property.
nam et si unas aedes communes tecum habui eaeque uitium faciant et circa refectionem earum cessare uidearis, nostri praeceptores negant cauere te debere, quia ipse reficere possim recepturus pro parte, quod impenderim, iudicio societatis aut communi diuidundo: ideo et interpositam cautionem minus utilem futuram, quia alia ratione damnum mihi posset sarciri.
For even if I had a single house in common with you and it was threatening to cause damage, and you seemed to delay in repairing it, our teachers deny that you ought to give security, because I myself can repair it and recover a share of what I have spent by an action on partnership or for division of common property; therefore, any security given would be of no effect, because the damage could be made good to me in another way.
et est plane nostrorum praeceptorum haec sententia, ut credamus inutilem esse damni infecti stipulationem, quo casu damnum alia actione sarciri possit: quod et in superiore casu intellegendum est.
And it is clearly the opinion of our teachers that we should believe the stipulation for threatened damage to be of no effect in a case where the damage can be made good by another action; and this must also be understood in the former case.

Notes

  1. §39.2.32.prmouet me, quod — The quod clause (quod... possim... consequi) is a noun clause of fact, functioning as the logical subject of mouet (literally "it moves me", meaning "it troubles me" or "makes me hesitate").
  2. §39.2.32.prmeas aedes — The phrase meas aedes ("my house") as the object of reficere possim refers in this context not to the separately owned house (aedibus meis at the beginning), but to the common house (aedes meae et tuae) in which the speaker has a share and thus has the right to repair.
  3. §39.2.32.prnostri praeceptores — "Our teachers" refers to the leaders of the Sabinian school (such as Sabinus and Capito), the legal sect to which Gaius belonged.

Cite this passage

Justinian I, The Digest of Justinian §39.2.32.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:39.2.32.pr

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