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Justinian I · The Digest of Justinian §4.8.40.pr

Death of Arbitrator Before the Date and Penalty

Passage 862 of 9271 · Latin

Summary

If an arbitrator dies before the scheduled day and one party fails to appear, the penalty is not incurred. This is treated in the same manner as cases where the arbitrator fails to attend, or where the stipulator prevents receipt of performance.

[POMPONIUS libro undecimo ex uariis lectionibus. ] §4.8.40.prArbiter calendis Ianuariis adesse iussit et ante eum diem decessit: alter ex litigatoribus non adfuit.
[POMPONIUS in his eleventh book of Various Readings.] An arbitrator ordered the parties to appear on the Kalends of January, and died before that day; one of the litigants did not appear.
procul dubio poena minime commissa est: nam et Cassium audisse se dicentem Aristo ait in eo arbitro, qui ipse non uenisset, non esse commissam: quemadmodum Seruius ait, si per stipulatorem stet, quo minus accipiat, non committi poenam.
Beyond doubt, the penalty has not been incurred at all; for Aristo says that he heard Cassius say that in the case of an arbitrator who himself did not come, the penalty is not incurred; just as Servius says that if it is due to the stipulator that he does not receive payment, the penalty is not incurred.

Notes

  1. 4.8.40.prdecessit — Meaning 'died'. It refers to the situation where the arbitrator passed away before the appointed day, making it impossible to hold the hearing.
  2. 4.8.40.praudisse se dicentem — The subject accusative of the infinitive audisse is se (referring to Aristo, the subject of the main verb ait), while Cassium is the subject of the participle dicentem. Thus, it has a double indirect speech structure: 'Aristo says (Aristo ait) that he (se) heard (audisse) Cassius saying (Cassium dicentem) [that...]'.
  3. 4.8.40.prper stipulatorem stet, quo minus accipiat — The idiom 'per aliquem stat, quo minus' followed by the subjunctive means 'it is due to someone that... not...' or 'someone is the cause of... not happening'. Here, it explains the legal rule that if the failure to receive performance is due to the stipulator (creditor), the penalty cannot be enforced against the other party.

Cite this passage

Justinian I, The Digest of Justinian §4.8.40.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:4.8.40.pr

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