Humanitext Reader

Justinian I · The Digest of Justinian §4.3.25.pr

Acquittal by Fraud and Replication in a New Action

Passage 686 of 9271 · Latin

Summary

Paulus holds that if an acquittal was obtained through the defendant's fraud, an action for fraud is not granted because the plaintiff can sue anew and counter the defense of res judicata with a replication.

[PAULUS libro undecimo ad edictum. ] §4.3.25.prCum a te pecuniam peterem eoque nomine iudicium acceptum est, falso mihi persuasisti, tamquam eam pecuniam seruo meo aut procuratori soluisses, eoque modo consecutus es, ut consentiente me absoluereris: quaerentibus nobis, an in te doli iudicium dari debeat, placuit de dolo actionem non dari, quia alio modo mihi succurri potest: nam ex integro agere possum et si obiciatur exceptio rei iudicatae, replicatione iure uti potero.
[PAULUS libro undecimo ad edictum.] When I was demanding money from you and on that account a trial was accepted, you falsely persuaded me, as if you had paid that money to my slave or my procurator, and in that way you succeeded in being acquitted with my consent. When we inquired whether an action for fraud ought to be granted against you, it was held that the action for fraud is not granted, because I can be relieved in another way: for I can sue anew, and if the exception of res judicata is objected, I will be able to make use of a replication by right.

Notes

  1. §4.3.25.prsuccurri potest — The intransitive verb `succurrere` (to relieve), which governs the dative, is used impersonally in the passive infinitive `succurri`, while the logical object `mihi` (me) remains in the dative case.
  2. §4.3.25.prexceptio rei iudicatae / replicatione — This refers to the procedural dynamic where, if the plaintiff sues anew (`ex integro agere`), the defendant raises the defense of res judicata (`exceptio`), and the plaintiff counters it with a replication (`replicatio`) alleging that the previous judgment was obtained through the defendant's fraud. Since the action for fraud (`actio de dolo`) is subsidiary in Roman law (granted only when no other remedy is available), it is denied here because this replication provides an alternative remedy.

Cite this passage

Justinian I, The Digest of Justinian §4.3.25.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:4.3.25.pr

Please note the AI-draft status of the translation and the date accessed.

Translation, notes and summary are AI-generated drafts, revised through reader feedback.