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Justinian I · The Digest of Justinian §43.1.5.pr

Duties of the Judge in Noxal Interdicts

Passage 7032 of 9271 · Latin

Summary

Paulus explains the duties of a judge and the criteria for the amount of condemnation in noxal interdicts based on the wrongful acts of dependents, depending on how the defendant owner responds to the claim.

[IDEM libro tertio decimo ad Sabinum. ] §43.1.5.prInterdicta noxalia ea sunt, quae ob delictum eorum, quos in potestate habemus, dantur, ueluti cum ui deiecerunt aut ui aut clam opus fecerunt.
[THE SAME, on Sabinus, book thirteen.] Noxal interdicts are those which are granted on account of the delict of those whom we have under our power, for example, when they have ejected someone by force, or have done work by force or stealth.
sed officio iudicis continetur, ut dominum sua inpensa opus restituentem absoluat: patientiam tollendo operi praestantem noxae dedere iubeat et absoluat, si non dedat, quantum impensae in tollendo opere erogatum sit, tanti condemnet: si neque patientiam praestet neque ipse tollat, cum possit, in tantum condemnet, in quantum iudex aestimauerit, atque si ipse fecisset.
But it is within the duty of the judge to acquit the owner who restores the work at his own expense; to order him who permits the removal of the work to surrender the wrongdoer and to acquit him, and if he does not surrender him, to condemn him in as much as the expense incurred in removing the work; and if he neither permits the removal nor removes it himself, although he is able to, to condemn him in as much as the judge estimates, just as if he himself had done it.

Notes

  1. 43.1.5.prpatientiam tollendo operi praestantem — The present participle `praestantem` modifies the understood `dominum` (serving as the object of `iubeat`). `tollendo operi` is a gerundive construction in the dative case, depending on `patientiam` to express the object of the tolerance ("allowance for removing the work").
  2. 43.1.5.prnoxae dedere — Meaning "to surrender for the damage (noxal surrender)," it refers to the Roman legal institution where a head of household or owner surrenders the wrongdoing slave or dependent to the victim to release themselves from liability.
  3. 43.1.5.prtanti condemnet — The genitive `tanti` with the verb of condemning `condemnet` is a genitive of price or value, indicating that the condemnation should be in the amount corresponding to the `quantum...` clause.
  4. 43.1.5.pratque si ipse fecisset — `atque si` (equivalent to `ac si`) introduces a conditional clause of comparison ("just as if"), taking the pluperfect subjunctive `fecisset` to indicate that the owner is held liable as if he had personally committed the act which was actually done by his dependent.

Cite this passage

Justinian I, The Digest of Justinian §43.1.5.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:43.1.5.pr

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