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Justinian I · The Digest of Justinian §39.3.5.pr

Liabilities of Tenant and Owner for Unauthorized Works

Passage 6178 of 9271 · Latin

Summary

A citation from Paulus. It explains the respective liabilities of the tenant and the owner, as well as the recovery of restoration expenses, when the tenant has made a work without the owner's knowledge.

[PAULUS libro quadragensimo nono ad edictum. ] §39.3.5.prSi colonus insciente domino opus fecerit, ex quo aqua uicino noceat, Labeo respondit colonum interdicto quod ui aut clam teneri, dominum uero fundi aquae pluuiae arcendae actione, quia is solus restituere opus potest: sed patientiam dumtaxat eum praestare debere, si ei damni infecti stipulatione caueatur, et, si quam impensam in restitutione operis fecerit, consecuturum a colono locati actione: nisi si quis ideo non putet, quoniam non fuerit necesse ipsum restituere.
[PAULUS libro quadragensimo nono ad edictum.] If a tenant has made a work without the owner's knowledge, from which water harms a neighbor, Labeo replied that the tenant is held liable under the interdict 'by force or stealth', whereas the owner of the land is held liable under the action for keeping off rain water, because he alone can restore the work; but that the owner ought to provide only tolerance, if security against threatened damage is given to him by a stipulation, and, if he has incurred any expense in the restoration of the work, he will recover it from the tenant by the action on lease; unless someone does not think so, on the ground that it was not necessary for the owner himself to restore it.
sed si iussu domini fecisset, etiam interdicto dominum teneri.
But if the tenant had made it by the order of the owner, the owner also is held liable under the interdict.

Notes

  1. §39.3.5.prdominum uero fundi — The infinitive `teneri` is understood from the preceding clause `colonum... teneri`. It indicates that the owner of the land is held liable under the action for keeping off rain water.
  2. §39.3.5.prsi ei damni infecti stipulatione caueatur — The dative pronoun `ei` refers to the owner of the land (`dominum`). It assumes a situation where security is given to the owner against potential damage that might occur, for example, when the tenant enters the owner's land to restore the work.
  3. §39.3.5.prconsecuturum — The future participle `consecuturum` stands for the future infinitive `consecuturum esse` with the omission of `esse`, and its subject is the owner of the land (`eum` / `dominum`). It is part of the indirect speech governed by `Labeo respondit`.
  4. §39.3.5.prnisi si quis ideo non putet — The object of `non putet` is the preceding opinion that the owner can recover the expense by the action on lease. It indicates that there could be an objection denying the recovery of expenses by the owner who voluntarily paid them, on the ground that the owner himself was not legally required to restore the work (since it was the tenant's responsibility).

Cite this passage

Justinian I, The Digest of Justinian §39.3.5.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:39.3.5.pr

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