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Justinian I · The Digest of Justinian §42.1.63.pr

Effects and Exceptions of Res Iudicata Concerning Third Parties

Passage 6915 of 9271 · Latin

Summary

Explains the principle of res iudicata between third parties and its exceptions, distinguishing cases based on whether a party could prevent the litigation or had derived their rights from the litigant, illustrated by co-heirs, pledges, and freedmen.

[MACER libro secundo de appellationibus. ] §42.1.63.prSaepe constitutum est res inter alios iudicatas aliis non praeiudicare.
[MACER, in the second book on Appeals.] It has often been established that matters decided between some parties do not prejudice others.
quod tamen quandam distinctionem habet: nam sententia inter alios dicta aliis quibusdam etiam scientibus obest, quibusdam uero, etiamsi contra ipsos iudicatum sit, nihil nocet.
This, however, admits of a certain distinction: for a judgment rendered between some parties is detrimental to certain other parties even when they are aware of it, whereas it does no harm to others, even if a decision has been rendered against them.
nam scientibus nihil praeiudicat, ueluti si ex duobus heredibus debitoris alter condemnatur: nam alteri integra defensio est, etiamsi cum coherede suo agi scierit.
For it does not prejudice those who are aware, for instance, if one of two heirs of a debtor is condemned: for the other has an unimpaired defense, even if he knew that action was being taken against his co-heir.
item si ex duobus petitoribus alter uictus adquieuerit, alterius petitioni non praeiudicatur: idque ita rescriptum est.
Likewise, if one of two claimants is defeated and acquiesces, the petition of the other is not prejudiced; and this has been so laid down in a rescript.
scientibus sententia, quae inter alios data est, obest, cum quis de ea re, cuius actio uel defensio primum sibi competit, sequentem agere patiatur, ueluti si creditor experiri passus sit debitorem de proprietate pignoris, aut maritus socerum uel uxorem de proprietate rei in dote acceptae, aut possessor uenditorem de proprietate rei emptae: et haec ita ex multis constitutionibus intellegenda sunt.
A judgment rendered between others is detrimental to those who are aware of it, when a person allows a subsequent party to litigate concerning a matter, the action or defense of which belongs primarily to himself; for example, if a creditor allows his debtor to litigate concerning the ownership of a pledge, or a husband allows his father-in-law or wife to litigate concerning the ownership of property received as a dowry, or a possessor allows his vendor to litigate concerning the ownership of a thing purchased: and these points are to be understood in this way from many constitutions.
cur autem his quidem scientia nocet, superioribus uero non nocet, illa ratio est, quod qui scit coheredem suum agere, prohibere eum, quo minus uti uelit propria actione uel defensione utatur, non potest: is uero, qui priorem dominum defendere causam patitur, ideo propter scientiam praescriptione rei quamuis inter alios iudicatae summouetur, quia ex uoluntate eius de iure, quod ex persona agentis habuit, iudicatum est.
Now, as to why knowledge is detrimental to these latter, but not to the former, the reason is this: that he who knows that his co-heir is litigating cannot prevent him from using his own action or defense as he wishes; but he who allows a former owner to defend the case is excluded by the plea of res iudicata, despite it having been decided between others, because of his knowledge, since the judgment was rendered with his consent concerning the right which he held from the persona of the litigant.
nam et si libertus meus me interueniente seruus uel libertus alterius iudicetur, mihi praeiudicatur.
For even if my freedman, with my intervention, is judged to be the slave or freedman of another, I am prejudiced.
diuersa causa est, si fundum a te Titius petierit, quem ego quoque, sed non ex persona Titii ad me pertinere dico: nam quamuis contra Titium me sciente iudicatum sit, nullum tamen praeiudicium patior, quia neque ex eo iure, quo Titius uictus est, uindico, neque potui Titio intercedere, quo minus iure suo utatur, sicuti et de coherede supra diximus.
The case is different if Titius claims a tract of land from you, which I also claim belongs to me, but not from the persona of Titius; for although a judgment has been rendered against Titius with my knowledge, I suffer no prejudice, because I do not vindicate my right on the basis of the right by which Titius was defeated, nor could I interfere with Titius to prevent him from using his own right, just as we have said above regarding the co-heir.

Notes

  1. §42.1.63.prres inter alios iudicatas aliis non praeiudicare — A classical formulation of the basic principle of the relative effect of res iudicata in Roman law, stating that judgments only take effect between the parties and do not prejudice third parties.
  2. §42.1.63.prpraescriptione rei quamuis inter alios iudicatae — Refers to the praescriptio rei iudicatae (the plea of res iudicata). It means that even if the judgment was originally rendered between others, the true owner who acquiesced in the litigation by the predecessor is barred by this plea due to their "knowledge" (scientia).
  3. §42.1.63.prprohibere eum, quo minus uti uelit propria actione uel defensione utatur, non potest — A construction where prohibere takes a quo minus clause with utatur in the subjunctive. It means "cannot prevent him from using his own action or defense." Since one co-heir cannot legally prevent another from litigating, the other is not bound by the unfavorable judgment.
  4. §42.1.63.prme interueniente — An ablative absolute construction formed by the pronoun me and the present participle interueniente. It means "with my intervention," indicating that the patron was present and involved in the status trial of his freedman.
  5. §42.1.63.prex persona Titii — Meaning "from the persona of Titius," i.e., "deriving the right (status) from Titius." If a claim is based on an independent right with no succession relation, the res iudicata of the judgment between others does not apply.

Cite this passage

Justinian I, The Digest of Justinian §42.1.63.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:42.1.63.pr

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