Humanitext Reader

Justinian I · The Digest of Justinian §43.30.5.pr

Interdict on Taking Children in Voluntary Stay and Paternity Dispute

Passage 7184 of 9271 · Latin

Summary

The author discusses that the interdict for taking away a son is generally ineffective if the son stays with someone of his own free will, except in cases where two claimants to fatherhood dispute and one demands the production of the son from the other.

[UENULEIUS libro quarto interdictorum. ] §43.30.5.prSi filius sua sponte apud aliquem est, inutile hoc interdictum erit, quia filius magis apud se quam apud eum est, in quem interdicetur, cum liberam facultatem abeundi uel remanendi haberet: nisi si inter duos, qui se patres dicerent, controuersia esset et alter ab altero exhiberi eum desideraret.
[UENULEIUS libro quarto interdictorum.] If a son is of his own accord with someone, this interdict will be of no effect, because the son is rather in his own power than with the person against whom the interdict is directed, since he has the free power of departing or remaining: unless there is a dispute between two persons who both claim to be his father, and one of them desires him to be produced by the other.

Notes

  1. §43.30.5.prapud se — It does not merely mean physically "with himself", but legally expresses that he is "in his own power" or acting on his own free will, as opposed to being under the unlawful detention of another, since he has the free power to leave or stay.
  2. §43.30.5.prhaberet — Subjunctive imperfect. While expressing the objective fact that the son has the free power as a reason (cum-causal), the subjunctive is used to present this as a general background condition in a hypothetical scenario where an interdict might be sought.
  3. §43.30.5.prdicerent — Subjunctive imperfect in the relative clause "qui se patres dicerent". Since this relative clause is embedded within a hypothetical condition (nisi si... esset) and forms part of that hypothesis, its mood is attracted to the subjunctive.

Cite this passage

Justinian I, The Digest of Justinian §43.30.5.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:43.30.5.pr

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