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Justinian I · The Digest of Justinian §39.3.9.pr-39.3.9.2

Grant of Water Rights in Conditional Land Sales

Passage 6182 of 9271 · Latin

Summary

This text discusses the requirement of consent from both buyer and seller when an estate is sold under certain conditions, and explains the legal rationale for requiring the landowner's consent in granting water rights.

[PAULUS libro quadragensimo nono ad edictum. ] §39.3.9.prIn diem addicto praedio et emptoris et uenditoris uoluntas exquirenda est, ut, siue remanserit penes emptorem siue recesserit, certum sit uoluntate domini factam aquae cessionem.
[PAULUS libro quadragensimo nono ad edictum.] When an estate has been sold subject to a better offer by a certain day, the consent of both the buyer and the seller must be sought, so that, whether the estate remains with the buyer or reverts to the seller, it may be certain that the grant of the water was made with the consent of the owner.
§39.3.9.1Ideo autem uoluntas exigitur, ne dominus ignorans iniuriam accipiat: nullam enim potest uideri iniuriam accipere, qui semel uoluit.
Moreover, consent is required for this reason, lest the owner suffer an injury without his knowledge; for he who has once consented cannot be deemed to suffer any injury.
§39.3.9.2Non autem solius eius, ad quem ius aquae pertinebit, uoluntas exigitur in aquae cessione, sed etiam domini locorum, etsi dominus uti ea aqua non possit, quia reccidere ius solidum ad eum potest.
However, in the grant of water, the consent is required not only of him to whom the right to the water will belong, but also of the owner of the land, even if the owner cannot use that water, because the complete right can revert to him.

Notes

  1. §39.3.9.prIn diem addicto praedio — An ablative absolute meaning 'when an estate has been sold subject to a better offer by a certain day'. The term `in diem addictio` refers to a specific pact in Roman law allowing the seller to rescind the contract if a better offer is received within a specified period.
  2. §39.3.9.prrecesserit — Subjunctive perfect. In the conditional clauses `siue remanserit ... siue recesserit`, the implied subject is `praedium` (the estate) mentioned earlier. It presents the alternative of whether the estate remains with the buyer or reverts (falls away from the buyer) to the seller.
  3. §39.3.9.1qui semel uoluit — A relative clause functioning as the subject of the main verb `potest uideri`, with the antecedent pronoun `is` being omitted ('he who has once consented').
  4. §39.3.9.2reccidere — Present active infinitive, meaning 'to fall back' or 'to revert'. It expresses the legal reasoning that the `ius solidum` (the complete or undivided right, i.e., full ownership) can 'revert' to the owner of the land (`ad eum`).

Cite this passage

Justinian I, The Digest of Justinian §39.3.9.pr-39.3.9.2. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:39.3.9.pr-39.3.9.2

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