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Justinian I · The Digest of Justinian §39.3.7.pr-39.3.7.1

Relief by Land Surrender in Rainwater Actions

Passage 6180 of 9271 · Latin

Summary

A defendant who personally made a work and is sued under the action for keeping off rain water cannot avoid the trial by surrendering the land, whereas a bona fide purchaser, who is only bound to tolerate the removal, is allowed to do so because surrendering the land exceeds his obligation.

[PAULUS libro octauo decimo ad edictum. ] §39.3.7.prIs cum quo aquae pluuiae arcendae agitur, quod opus fecit, licet cedere loco paratus sit, cogitur accipere iudicium, quoniam et suo nomine conuenitur, ut opus tollat. §39.3.7.1Aliud est in bonae fidei emptore: hic enim tantum patientiam praestat: igitur si et fundo cedat, audiendus est: plus enim praestat.
[PAULUS libro octauo decimo ad edictum.]\n\nA person against whom the action for keeping off rain water is brought, because he made the work, is compelled to accept the trial, even though he is prepared to surrender the place, since he is sued in his own name to remove the work.\n\nIt is otherwise in the case of a bona fide purchaser; for he only provides tolerance. Therefore, if he should also surrender the land, he ought to be heard, for he provides more.

Notes

  1. §39.3.7.prquod opus fecit — A clause with the causal conjunction 'quod', meaning 'because he made the work'. It distinguishes the defendant who personally made the work (the actor) from a successor (such as a bona fide purchaser) to the land where a work was made by another.
  2. §39.3.7.prcedere loco — 'To surrender the place/land'. It refers to the act of the defendant attempting to escape the obligation of the lawsuit by abandoning (or surrendering to the plaintiff) the possession of the disputed land.
  3. §39.3.7.1patientiam praestat — 'Provides tolerance' or 'owes the duty to tolerate'. It indicates that the bona fide purchaser does not owe an active duty to remove the work himself, but only a passive duty to allow (tolerate) the plaintiff to enter the land and remove it (corresponding to 'patientiam' in the previous fragment 39.3.6.7).

Cite this passage

Justinian I, The Digest of Justinian §39.3.7.pr-39.3.7.1. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:39.3.7.pr-39.3.7.1

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