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Justinian I · The Digest of Justinian §42.1.39.pr

Absence of a Judge and Validity of Majority Ruling

Passage 6891 of 9271 · Latin

Summary

It is ruled that two out of three judges cannot render a judgment if one is absent, but if all three are present and one dissents, the majority opinion of the two is valid as a decision of all.

[CELSUS libro tertio digestorum. ] §42.1.39.prDuo ex tribus iudicibus uno absente iudicare non possunt, quippe omnes iudicare iussi sunt.
[CELSUS, in the third book of the Digests.] Two out of three judges, in the absence of one, cannot render a judgment, for indeed all have been ordered to judge.
sed si adsit et contra sentiat, statur duorum sententiae: quid enim minus uerum est omnes iudicasse?
But if he is present and dissents, the opinion of the two stands; for how is it any less true that all have judged?

Notes

  1. §42.1.39.pruno absente — An ablative absolute construction representing a conditional circumstance: "in the absence of one" or "if one is absent."
  2. §42.1.39.prstatur duorum sententiae — An impersonal passive use of the intransitive verb sto (here meaning "to stand by" or "to abide by"), taking the dative duorum sententiae. Literally, "it is stood by the opinion of the two."
  3. §42.1.39.prquid enim minus uerum est omnes iudicasse? — A rhetorical question in which omnes iudicasse (accusative with infinitive) serves as the subject of the impersonal expression uerum est. Literally, "for how is it less true that all have judged?", implying that because the dissenting judge was present and expressed an opinion, all three have indeed participated in the judgment.

Cite this passage

Justinian I, The Digest of Justinian §42.1.39.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:42.1.39.pr

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