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Justinian I · The Digest of Justinian §42.1.20.pr

Mutual Benefit of Competence Between Spouses

Passage 6872 of 9271 · Latin

Summary

Modestinus states that a husband is condemned only to the extent of his ability to perform in dowry and other contract disputes, and that equity requires this same standard to be applied to the wife.

[MODESTINUS libro secundo differentiarum. ] §42.1.20.prNon tantum dotis nomine maritus in quantum facere possit condemnatur, sed ex aliis quoque contractibus ab uxore iudicio conuentus in quantum facere potest, condemnandus est ex diui Pii constitutione.
[MODESTINUS, in the second book on Differences.] only is a husband condemned to the extent of what he is able to perform on the ground of a dowry, but even when sued in judgment by his wife on the basis of other contracts, he is to be condemned to the extent of what he is able to perform, according to a constitution of the divine Pius.
quod et in persona mulieris aequa lance seruari aequitatis suggerit ratio.
The principle of equity suggests that this should be observed with an equal balance in the person of the wife as well.

Notes

  1. §42.1.20.prin quantum facere possit — A formulaic expression in Roman law denoting the "beneficium competentiae" (benefit of competence). It indicates that the defendant should be condemned only to the extent of his actual ability to perform, so as to prevent him from falling into utter destitution. The subsequent 'in quantum facere potest' is virtually synonymous, though using the indicative.
  2. §42.1.20.prquod et in persona mulieris aequa lance seruari aequitatis suggerit ratio — The subject of this clause is aequitatis ratio (the principle of equity) placed at the end, which governs the object infinitive clause quod ... seruari via the verb suggerit (suggests). Here, quod is a relative pronoun referring to the aforementioned privilege of the husband, acting as the subject accusative of the passive infinitive seruari (to be observed). The phrase aequa lance (with an equal balance) is an ablative of manner.

Cite this passage

Justinian I, The Digest of Justinian §42.1.20.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:42.1.20.pr

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