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Justinian I · The Digest of Justinian §44.1.20.pr

Three Grounds for Raising Exceptions and Examples

Passage 7209 of 9271 · Latin

Summary

Paulus classifies the reasons for raising exceptions into three categories—whether something that ought to be done was done, something that ought not to be done was done, or something that ought to have been done was not done—and provides concrete examples for each.

[PAULUS libro singulari de conceptione formularum. ] §44.1.20.prExceptiones opponuntur aut quia factum sit quod fieri oportet, aut quia factum sit quod fieri non oportuit, aut quia factum non sit quod fieri debuerat.
[PAULUS in his single book on the Drafting of Formulas.] Exceptions are opposed either because that has been done which ought to be done, or because that has been done which ought not to be done, or because that has not been done which ought to have been done.
quia factum est, quod fieri oportuit, datur exceptio rei uenditae et traditae et rei iudicatae: quia factum est, quod fieri non oportuit, datur exceptio doli mali: quia non factum est, quod fieri debuit, ut bonorum possessionis non datae.
Because that has been done which ought to be done, the exception of a sold and delivered thing and the exception of a res judicata are granted; because that has been done which ought not to be done, the exception of dolo malo is granted; because that has not been done which ought to have been done, for example, the exception of an ungranted possession of goods.

Notes

  1. §44.1.20.prfactum sit — In the first sentence, the subjunctive perfect factum sit is used after quia to present the general categories or hypothetical reasons why exceptions are opposed. In the subsequent sentences, the indicative perfect factum est is used because it refers to the concrete, established legal facts that serve as the grounds for specific exceptions.
  2. §44.1.20.prbonorum possessionis non datae — The word exceptio (exception) is understood from the context as omitted here, so it should be read as ut [exceptio] bonorum possessionis non datae. bonorum possessionis non datae (the ungranted possession of goods) is a genitive phrase modifying the omitted exceptio.

Cite this passage

Justinian I, The Digest of Justinian §44.1.20.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:44.1.20.pr

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