Humanitext Reader

Justinian I · The Digest of Justinian §40.12.13.pr-40.12.13.1

Malice and Risk Allocation in Actions in Factum

Passage 6578 of 9271 · Latin

Summary

Gaius explains that the action in factum for damages in trials concerning freedom only covers damage caused by malice and not negligence, and that it also applies to third-party property for which one bears the risk.

[GAIUS ad edictum praetoris urbani titulo de liberali causa. ] §40.12.13.prIllud certum est damnum hoc solum in hac in factum actione deduci, quod dolo, non etiam quod culpa factum sit.
[GAIUS, on the Edict of the Urban Praetor, under the title "On trials concerning freedom".] It is certain that only that damage which was done by malice, and not also that which was done by negligence, is brought into this action in factum.
ideoque licet absolutus hoc iudicio fuerit, adhuc tamen postea cum eo poterit lege Aquilia agi, cum ea lege etiam culpa teneatur.
Therefore, although a person may have been acquitted in this trial, it will still be possible afterwards to sue him under the Lex Aquilia, since under that law a person is held liable for negligence as well.
§40.12.13.1Item certum est tam res nostras quam res alienas, quae tamen periculo nostro sunt, in hanc actionem deduci, ueluti commodatas et locatas: certe depositae apud nos res, quia nostro periculo non sunt, ad hanc actionem non pertinent.
Likewise, it is certain that both our own property and the property of others, which, however, is at our risk, are brought into this action, such as things lent and hired; whereas things deposited with us, because they are not at our risk, certainly do not belong to this action.

Notes

  1. 40.12.13.prquod dolo, non etiam quod culpa factum sit — A relative clause restrictively modifying the antecedent 'damnum', with the verb 'factum sit' in the subjunctive of characteristic/restriction. It specifies that the action 'in factum' is restricted only to damage caused by malice ('dolo') as opposed to negligence ('culpa').
  2. 40.12.13.prcum eo poterit lege Aquilia agi — The verb 'agi' is used impersonally in the passive ('action can be brought'), and 'cum eo' indicates the party against whom the action is brought (the defendant). 'Lege Aquilia' is an ablative of instrument/means. Thus, the phrase means 'an action under the Lex Aquilia can be brought against him'.
  3. 40.12.13.1periculo nostro sunt — The phrase 'nostro periculo' is an ablative of description or predicate ablative, modifying 'res'. It denotes the legal state of 'being at our risk'. It indicates that even third-party property ('res alienas') can be brought into this action if we bear the liability or risk ('periculum') for it, as in loan for use ('commodatum') or hire ('locatum').

Cite this passage

Justinian I, The Digest of Justinian §40.12.13.pr-40.12.13.1. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:40.12.13.pr-40.12.13.1

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.