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Justinian I · The Digest of Justinian §42.4.2.pr-42.4.2.4

Possession of Assets of an Absent or Hiding Defendant

Passage 6935 of 9271 · Latin

Summary

Drawing on the praetor's edict, Ulpian clarifies the legal definitions of 'making oneself available' and 'being defended' regarding taking possession of the property of an absent or hiding defendant, utilizing grammatical analysis of the edict's phrasing.

[IDEM libro quinto ad edictum. ] §42.4.2.prPraetor ait: 'in bona eius, qui iudicio sistendi causa fideiussorem dedit, si neque potestatem sui faciet neque defenderetur, iri iubebo'. §42.4.2.1Potestatem autem sui non facit, qui id agit, ne aduersarius eius copiam sui habeat: ergo latitantis bona iubet possideri.
[THE SAME, in the fifth book on the Edict.] The praetor says: 'I will order possession to be taken of the property of him who gave a surety for the purpose of appearing in court, if he neither makes himself available nor is defended.' Now, he does not make himself available who acts to the end that his adversary does not have access to him; therefore, the praetor orders the property of one who is hiding to be possessed.
§42.4.2.2Quid si non latitet, sed absens non defendatur? nonne uidetur potestatem sui non facere?
What if he is not hiding, but being absent, is not defended? Is he not deemed to fail to make himself available?
§42.4.2.3Defendi autem uidetur, qui per absentiam suam in nullo deteriorem causam aduersarii faciat.
But he is deemed to be defended who, by his absence, makes his adversary's position in no way worse.
§42.4.2.4Haec uerba 'defenderetur' παρατατικῶς scripta sunt, ut neque sufficiat umquam defendisse, si non duret defensio, neque obsit, si nunc offeratur.
These words 'defenderetur' are written continuously (παρατατικῶς), so that it is neither sufficient to have defended at some time if the defense does not last, nor is it prejudicial if a defense is offered now.

Notes

  1. §42.4.2.priri iubebo — The passive infinitive 'iri' of the intransitive verb 'eo' (to go) is used impersonally with the prepositional phrase 'in bona eius' (into his goods). It functions as the object of 'iubebo', meaning 'I will order that his goods be entered upon'.
  2. §42.4.2.prpotestatem sui faciet — Literally 'to make power of oneself', this is a legal idiom meaning 'to make oneself legally available or accessible (e.g. by appearing)' to the adversary. 'sui' is the genitive of the reflexive pronoun, functioning as an objective genitive with 'potestatem'.
  3. §42.4.2.4defenderetur — In the quotation of the praetor's edict (§42.4.2.pr), the future indicative 'faciet' is juxtaposed with the imperfect subjunctive 'defenderetur'. Ulpian explains that the latter is written 'παρατατικῶς' (continuously / in the imperfect aspect), meaning that it denotes a continuous state of defense rather than a single past act.

Cite this passage

Justinian I, The Digest of Justinian §42.4.2.pr-42.4.2.4. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:42.4.2.pr-42.4.2.4

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