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Justinian I · The Digest of Justinian §42.1.38.pr-42.1.38.1

Rules for Resolving Judicial Disagreement

Passage 6890 of 9271 · Latin

Summary

This text rules that when judges disagree, the decision in favor of freedom prevails in status cases, while the decision in favor of the defendant prevails in other (including public) cases, and that the smallest sum must be adopted if different amounts of condemnation are proposed.

[PAULUS libro septimo decimo ad edictum. ] §42.1.38.prInter pares numero iudices si dissonae sententiae proferantur, in liberalibus quidem causis, secundum quod a diuo Pio constitutum est, pro libertate statutum optinet, in aliis autem causis pro reo.
[PAULUS, in the seventeenth book on the Edict.] If, among judges who are equal in number, differing opinions are pronounced, in status lawsuits indeed, according to what was established by the divine Pius, the decision in favor of liberty prevails; but in other lawsuits, that in favor of the defendant [prevails].
quod et in iudiciis publicis optinere oportet.
This ought to hold good in public trials as well.
§42.1.38.1Si diuersis summis condemnent iudices, minimam spectandam esse Iulianus scribit.
If the judges should condemn [the defendant] to different sums, Julian writes that the smallest sum is to be regarded.

Notes

  1. 42.1.38.prpro reo — In the clause 'in aliis autem causis pro reo', the verb phrase 'statutum optinet' from the preceding clause is ellipted. Thus, it is understood as 'but in other lawsuits, [the decision] in favor of the defendant [prevails]'.
  2. 42.1.38.prquod — A relative pronoun at the beginning of a sentence (connecting relative), which refers back to the principle stated in the preceding sentence (especially the rule in favor of the defendant, or the entire rule of decision in case of an equal split) as its antecedent.
  3. 42.1.38.1minimam — The feminine noun 'summam' (sum, amount) is ellipted, understood from the preceding 'diuersis summis' (different sums). Thus, 'minimam [summam] spectandam esse' means 'that the minimum [sum] is to be regarded'.

Cite this passage

Justinian I, The Digest of Justinian §42.1.38.pr-42.1.38.1. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:42.1.38.pr-42.1.38.1

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