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Justinian I · The Digest of Justinian §44.2.20.pr

Subsequent Claim for Overlooked Legacy and Res Judicata

Passage 7233 of 9271 · Latin

Summary

Trebatius argues that a legatee who claimed only tables, unaware that all the silver was bequeathed to him, is not barred by an exception from later claiming the rest of the silver, since neither the plaintiff nor the judge had recognized it in the first trial.

[POMPONIUS libro sexto decimo ad Sabinum. ] §44.2.20.prSi ex testamento actum sit cum herede ab eo, qui, cum totum argentum ei legatum erat, mensas dumtaxat sibi legatas putaret earumque dumtaxat aestimationem in iudicio fecisset: postea eundem petiturum de argento quoque legato Trebatius ait nec obstaturam ei exceptionem, quod non sit petitum, quod nec actor petere putasset nec iudex in iudicio sensisset.
[POMPONIUS, on Sabinus, book sixteen.] If an action on a will is brought against the heir by one who, although all the silver had been bequeathed to him, thought that only tables had been bequeathed to him and had only their value assessed in court: Trebatius says that afterward the same person can also sue for the bequeathed silver, and that the exception will not stand in his way on the ground that there was no claim for what the plaintiff had not thought of claiming and the judge had not noticed in the trial.

Notes

  1. §44.2.20.practum sit — Subjunctive present passive in the si clause, representing a hypothetical condition. It is an impersonal passive construction ('if an action is brought'), with the agent expressed by ab eo, qui... ('by one who...').
  2. §44.2.20.prquod non sit petitum — quod is a conjunction meaning 'on the ground that' or 'because', explaining the basis of the exception (exceptionem). sit petitum is in the subjunctive because it is in a subordinate clause in indirect speech dependent on Trebatius ait.
  3. §44.2.20.prquod nec actor petere putasset — Here quod is a relative pronoun in the neuter singular, referring to an implied antecedent (such as id), meaning '[that] which the plaintiff had not thought of claiming', serving as the substantial subject of the passive state implied in petitum.

Cite this passage

Justinian I, The Digest of Justinian §44.2.20.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:44.2.20.pr

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