Humanitext Reader

Justinian I · The Digest of Justinian §42.1.52.pr

Full Liability of a Husband in Actions for Property Removed

Passage 6904 of 9271 · Latin

Summary

The author argues that in an action for property removed brought against a husband, even though it stems from the prior marital life, he must be held liable for the whole amount without the benefit of competence, since the claim arises from wrongful conduct and delict.

[TRYPHONINUS libro duodecimo disputationum. ] §42.1.52.prSi rerum amotarum cum uiro agatur, quamquam uideatur ea quoque actio praecedentis societatis uitae causam habuisse, in solidum condemnari debet, quoniam ex male contractu et delicto oritur.
[TRYPHONINUS, in the twelfth book of Disputations.] If an action for property removed is brought against a husband, although that action also may seem to have had its cause in the preceding partnership of life, he ought to be condemned for the whole amount, since it arises from wrongful conduct and delict.

Notes

  1. §42.1.52.prrerum amotarum — The noun `actio` (action) is omitted, referring to the "action for property removed" (`actio rerum amotarum`). This was a special action allowed after the dissolution of marriage to recover property taken by one spouse from another, since a theft action could not be brought between spouses during marriage.
  2. §42.1.52.prsocietatis uitae — "Partnership of life," referring here to the marital relationship. Roman jurists often defined marriage as a lifelong partnership (`consortium omnis uitae` or `societas uitae`) and a union of divine and human law.
  3. §42.1.52.prin solidum condemnari debet — In actions between spouses, the defendant is usually granted the "benefit of competence" (beneficium competentiae), limiting the liability to their ability to pay. However, this passage states that because the action for property removed arises from wrongful conduct and delict, the husband is excluded from this privilege and must be condemned for the full amount (`in solidum`).

Cite this passage

Justinian I, The Digest of Justinian §42.1.52.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:42.1.52.pr

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