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Justinian I · The Digest of Justinian §44.2.19.pr

Double Pledge Disputes and the Res Judicata Plea

Passage 7232 of 9271 · Latin

Summary

Addresses whether the exception of res judicata applies when a prior pledgee brings a similar action after a subsequent pledgee has already sued and won in a dispute over doubly pledged property.

[MARCELLUS libro nono decimo digestorum. ] §44.2.19.prDuobus diuersis temporibus eandem rem pignori dedit: egit posterior cum priore pigneraticia et optinuit: mox ille agere simili actione instituit: quaesitum est, an exceptio rei iudicatae obstaret.
[MARCELLUS, digests, book nineteen.] A debtor pledged the same thing at two different times: the later creditor brought a pledge action against the prior creditor and succeeded: soon after, the prior creditor undertook to bring a similar action: the question arose whether the exception of res judicata would stand in his way.
si opposuerat exceptionem rei sibi ante pigneratae et nihil aliud nouum et ualidum adiecerit, sine dubio obstabit: eandem enim quaestionem reuocat in iudicium.
If he had raised the exception that the thing had been pledged to him beforehand, and has added nothing else new and valid, it will without doubt stand in his way; for he is bringing the very same question back into court.

Notes

  1. §44.2.19.prpigneraticia — The feminine noun `actione` is omitted and understood. In this context, it refers not to the personal action of pledge (actio pigneraticia in personam) based on contract, but to the real action (actio pigneraticia in rem / actio quasi Serviana) used between rival pledgees to dispute the possession or priority of the pledged object.
  2. §44.2.19.propposuerat ... adiecerit ... obstabit — Note the combination of tenses. The pluperfect `opposuerat` refers to the assertion of the exception in the prior trial where the subsequent pledgee was the plaintiff, whereas the future perfect (or perfect subjunctive) `adiecerit` and the future `obstabit` refer to the outcome concerning the exception of res judicata in the subsequent trial brought by the prior pledgee.

Cite this passage

Justinian I, The Digest of Justinian §44.2.19.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:44.2.19.pr

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