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Justinian I · The Digest of Justinian §42.1.32.pr

Inapplicability of Constitutions and Need for Appeal

Passage 6884 of 9271 · Latin

Summary

It is explained that if a judge decides against a constitution because he deems it inapplicable to the case before him, his judgment is not considered contrary to the constitution, and therefore an appeal must be made to prevent the judgment from becoming res judicata.

[IDEM libro tertio cognitionum. ] §42.1.32.prCum prolatis constitutionibus contra eas pronuntiat iudex, eo quod non existimat causam, de qua iudicat, per eas iuuari, non uidetur contra constitutiones sententiam dedisse.
[THE SAME, in the third book on Cognitions.] When, although constitutions have been produced, a judge pronounces against them, on the ground that he does not think that the case on which he is judging is aided by them, he is not deemed to have given a decision contrary to the constitutions.
ideoque ab eiusmodi sententia appellandum est: alioquin rei iudicatae stabitur.
Therefore, an appeal must be made from such a decision; otherwise, the matter adjudged will stand.

Notes

  1. §42.1.32.prprolatis constitutionibus — An ablative absolute construction comprising the ablative plural of constitutio and the perfect passive participle of proferre. Here it has a concessive force ('although constitutions have been produced'), referring to a situation where a party has cited or produced imperial constitutions in court.
  2. §42.1.32.prper eas iuuari — The subject accusative of the present passive infinitive iuuari (to be aided) is causam (case), which is the antecedent of the relative clause. That 'the case is aided by them (the constitutions)' means that the constitutions are applicable or relevant to the resolution of the case.
  3. §42.1.32.prrei iudicatae stabitur — stabitur is the third-person singular future passive of the intransitive verb stare (to stand, abide by), used impersonally. The verb stare governs the dative, which here is rei iudicatae (the matter adjudged, res judicata). It means 'the matter adjudged will stand', i.e., the judgment will become final and binding if no proper appeal is made.

Cite this passage

Justinian I, The Digest of Justinian §42.1.32.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:42.1.32.pr

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