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Justinian I · The Digest of Justinian §4.2.7.pr-4.2.7.1

Exclusion of Fear of Infamy and Legitimate Fear in Crimes

Passage 644 of 9271 · Latin

Summary

The text discusses that while fear of infamy, harassment, or groundless fears of a timid person are excluded from the edict's remedy, those caught in a crime who alienate property due to a realistic fear of death or imprisonment can be granted relief.

[ULPIANUS libro undecimo ad edictum. ] §4.2.7.prNec timorem infamiae hoc edicto contineri Pedius dicit libro septimo, neque alicuius uexationis timorem per hoc edictum restitui.
[ULPIAN, On the Edict, book 11] Pedius says in his seventh book that neither fear of infamy is included in this edict, nor is fear of some vexation restored by this edict.
proinde si quis meticulosus rem nullam frustra timuerit, per hoc edictum non restituitur, quoniam neque ui neque metus causa factum est.
Therefore, if a timid person fears groundlessly what is nothing, he is not restored by this edict, because it was not done by force or because of fear.
§4.2.7.1Proinde si quis in furto uel adulterio deprehensus uel in alio flagitio uel dedit aliquid uel se obligauit, Pomponius libro uicensimo octauo recte scribit posse eum ad hoc edictum pertinere: timuit enim uel mortem uel uincula.
Therefore, if anyone caught in theft or adultery or in another shameful act either gave something or obligated himself, Pomponius rightly writes in his twenty-eighth book that he can pertain to this edict: for he feared either death or chains.
quamquam non omnem adulterum liceat occidere, uel furem, nisi se telo defendat: sed potuerunt uel non iure occidi, et ideo iustus fuerit metus.
Although it is not permitted to kill every adulterer, or a thief, unless he defends himself with a weapon; yet they could have been killed even unlawfully, and therefore the fear was justified.
sed et si, ne prodatur ab eo qui deprehenderit, alienauerit, succurri ei per hoc edictum uidetur, quoniam si proditus esset, potuerit ea pati quae diximus.
But also if, lest he be betrayed by the one who caught him, he alienated property, it seems that he is succored by this edict, since if he had been betrayed, he could have suffered those things which we have mentioned.

Notes

  1. §4.2.7.prrem nullam frustra timuerit — The combination of "rem nullam" (literally "no thing", representing something non-existent or of no consequence) and "frustra" (in vain, groundlessly). It refers to a case where a naturally timid person (meticulosus) is subjectively frightened without any objective danger, indicating that actions taken out of such groundless fear do not qualify for relief under the edict.
  2. §4.2.7.1sed potuerunt uel non iure occidi — The adverbial phrase "non iure" (unlawfully, contrary to law) modifies the infinitive "occidi" (to be killed). This demonstrates the legal reasoning that even if killing them was not legally permitted (non liceat), there existed a realistic possibility (potuerunt) that they might be killed unlawfully (e.g., through extrajudicial violence), which renders their fear of death a "justified fear" (iustus metus).
  3. §4.2.7.1ne prodatur ab eo qui deprehenderit — A negative purpose clause introduced by the conjunction "ne" ("lest he be betrayed/exposed"). Within the conditional clause "si... alienauerit", it expresses the purpose of the alienation (alienauerit), describing a disposal of property made under a state of psychological duress.

Cite this passage

Justinian I, The Digest of Justinian §4.2.7.pr-4.2.7.1. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:4.2.7.pr-4.2.7.1

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