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Justinian I · The Digest of Justinian §42.1.6.pr-42.1.6.3

Benefit of Competence and Judgments Involving Noxal Surrender

Passage 6857 of 9271 · Latin

Summary

This chunk explains the benefit of competence for soldiers' payment, the nature of judgments involving alternative surrender of a damaging object, the tort liability for unauthorized disposal of a debtor's property, and the transmissibility of the action on judgment.

[IDEM libro sexagensimo sexto ad edictum. ] §42.1.6.prMiles, qui sub armata militia stipendia meruit, condemnatus eatenus, qua facere potest, cogitur soluere.
[THE SAME, in the sixty-sixth book on the Edict.] A soldier who has served in armed military service, if condemned, is compelled to pay only to the extent that he is able to do so.
§42.1.6.1Decem aut noxae dedere condemnatus iudicati in decem tenetur: facultatem enim noxae dedendae ex lege accipit.
One who has been condemned to "ten or to surrender the damaging object" is bound in ten under the action on judgment; for he receives the power of surrendering the damaging object from the law.
at is, qui stipulatus est decem aut noxae dedere, non potest decem petere, quia in stipulatione singula per se ueniunt ea, quae singula separatim stipulari possumus: at iudicium solius noxae deditionis nullum est, sed pecuniariam condemnationem sequitur.
On the other hand, he who has stipulated for "ten or to surrender the damaging object" cannot demand ten, because in a stipulation those individual things enter by themselves which we can stipulate for individually and separately; but there is no trial of mere surrender of the damaging object, but it follows a pecuniary condemnation.
et ideo iudicati decem agitur, his enim solis condemnatur: noxae deditio in solutione est, quae e lege tribuitur.
And therefore, the action on judgment is brought for ten, for he is condemned in this alone; the surrender of the damaging object is in the payment, which is granted by law.
§42.1.6.2Qui iudicati bona auctoritate sua distraxit, furti actione et ui bonorum raptorum ei tenetur.
Whoever has sold the goods of a judgment debtor on his own authority is liable to him under the action for theft and the action for property taken by force.
§42.1.6.3Iudicati actio perpetua est et rei persecutionem continet: item heredi et in heredem competit.
The action on judgment is perpetual and contains a pursuit of the thing; likewise, it is available to the heir and against the heir.

Notes

  1. §42.1.6.preatenus, qua — A combination of the adverb eatenus (to that extent) and the relative adverb qua (in so far as), standing for the more common eatenus, quatenus. This is a formulaic expression referring to the "benefit of competence" (beneficium competentiae), where the debtor is liable only to the extent of their ability to pay.
  2. §42.1.6.1iudicati — Here iudicati is the genitive of "the action on judgment" (actio iudicati), with actione being omitted, indicating the basis of liability under tenetur. It is to be distinguished from iudicati in §42.1.6.2 (qui iudicati bona...), where it means "of the judgment debtor."
  3. §42.1.6.1singula per se ueniunt ea, quae singula separatim stipulari possumus — The structure features the subject of the main clause, ea (neuter plural), modified by the relative clause quae...possumus (the things which we can stipulate). It explains the strictness of verbal contracts (stipulatio), showing that even in alternative obligations, the individual components enter the contract as separate, independent items.

Cite this passage

Justinian I, The Digest of Justinian §42.1.6.pr-42.1.6.3. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:42.1.6.pr-42.1.6.3

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