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Justinian I · The Digest of Justinian §4.5.2.pr-4.5.2.5

Scope of the Edict on Capitis Deminutio and Actions

Passage 754 of 9271 · Latin

Summary

Ulpian explains the scope of the diminution of status to which the edict applies (when citizenship is preserved) and discusses the validity of contracts or delicts entered into before or after the diminution, as well as the availability of actions in specific cases like arrogation.

[ULPIANUS libro duodecimo ad edictum. ] §4.5.2.prPertinet hoc edictum ad eas capitis deminutiones, quae salua ciuitate contingunt.
[ULPIANUS libro duodecimo ad edictum.] This edict applies to those diminutions of status which occur while citizenship is preserved.
ceterum siue amissione ciuitatis siue libertatis amissione contingat capitis deminutio, cessabit edictum neque possunt hi penitus conueniri: dabitur plane actio in eos, ad quos bona peruenerunt eorum.
But if the diminution of status should occur either by loss of citizenship or by loss of liberty, the edict will not apply, nor can these persons be sued at all; clearly, an action will be granted against those to whom their goods have come.
§4.5.2.1Ait praetor: 'Qui quaeue, posteaquam quid cum his actum contractumue sit, capite deminuti deminutae esse dicentur, in eos easue perinde, quasi id factum non sit, iudicium dabo'. §4.5.2.2Hi qui capite minuuntur ex his causis, quae capitis deminutionem praecesserunt, manent obligati naturaliter: ceterum si postea, imputare quis sibi debebit cur contraxerit, quantum ad uerba huius edicti pertinet.
The praetor says: 'Whosoever, male or female, after some transaction has been done or contract made with them, shall be said to have suffered diminution of status, against them I will grant an action just as if that fact had not occurred.' Those who suffer diminution of status remain naturally bound by those causes which preceded the diminution of status; but if afterwards, a person must blame himself for why he contracted, as far as the words of this edict are concerned.
sed interdum, si contrahatur cum his post capitis deminutionem, danda est actio: et quidem si adrogatus sit, nullus labor: nam perinde obligabitur ut filius familias.
Yet sometimes, if a contract is made with them after the diminution of status, an action must be granted; and indeed if he has been arrogated, there is no difficulty, for he will be bound just like a son-in-power.
§4.5.2.3Nemo delictis exuitur, quamuis capite minutus sit.
No one is divested of liability for delicts, although he may have suffered a diminution of status.
§4.5.2.4Ei, qui debitorem suum adrogauit, non restituitur actio in eum, postquam sui iuris fiat.
To one who has arrogated his own debtor, an action against him is not restored after he becomes independent.
§4.5.2.5Hoc iudicium perpetuum est et in heredes et heredibus datur.
This action is perpetual, and is granted both against heirs and in favor of heirs.

Notes

  1. 4.5.2.prsalua ciuitate — An ablative absolute construction ('with citizenship preserved'). It refers to the least diminution of status (capitis deminutio minima, e.g., adrogatio), where only family relations change, unlike cases where liberty or citizenship is lost.
  2. 4.5.2.1Qui quaeue — A combination of the masculine singular relative pronoun qui and the feminine singular quae with the enclitic conjunction -ue ('or'). It functions as the subject of the passive verb dicentur and its prolative infinitives deminuti deminutae esse, demonstrating the formulaic legal language used in the edict to cover both genders.
  3. 4.5.2.1quasi id factum non sit — A conditional clause of comparison ('just as if... had not occurred') introduced by the conjunction quasi with the perfect subjunctive non sit. Here, id factum refers to the occurrence of the diminution of status.
  4. 4.5.2.2si postea — The verb is omitted in this conditional clause. By contrast with the preceding quae capitis deminutionem praecesserunt (which preceded the diminution of status), the clause is understood by supplying a verb of contracting, such as si postea contrahatur (if a contract is made afterwards).
  5. 4.5.2.4Ei — Dative of disadvantage (or reference) depending on the impersonal passive verb restituitur ('an action is not restored to/for him'). It functions as the antecedent modified by the relative clause qui debitorem suum adrogauit.

Cite this passage

Justinian I, The Digest of Justinian §4.5.2.pr-4.5.2.5. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:4.5.2.pr-4.5.2.5

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