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Justinian I · The Digest of Justinian §44.2.24.pr

Buyer's Replication of Res Judicata Against the Owner

Passage 7237 of 9271 · Latin

Summary

This section explains that a buyer who purchased from a non-owner and was acquitted in an initial claim by the owner can, upon losing possession and suing the owner, counter the owner's defense using a replication based on res iudicata.

[IULIANUS libro nono digestorum. ] §44.2.24.prSi quis rem a non domino emerit, mox petente domino absolutus sit, deinde possessionem amiserit et a domino petierit, aduersus exceptionem 'si non eius sit res' replicatione hac adiuuabitur 'at si res iudicata non sit'.
[JULIAN, on the Digest, book nine.] If someone has bought a thing from a non-owner, and soon after was acquitted when the owner claimed it, and then lost possession and claimed it from the owner, he will be assisted against the exception "unless the thing is his" by this replication: "but what if the matter has not been adjudged?"

Notes

  1. §44.2.24.prpetente domino absolutus sit — This refers to the initial litigation phase where the true owner sued the buyer as the plaintiff, but the buyer (defendant) was acquitted (absolutus sit) for some reason (e.g., failure of proof by the owner). The phrase 'petente domino' is an ablative absolute.
  2. §44.2.24.pra domino petierit — This refers to the second litigation phase. The buyer, having lost possession, now acts as the plaintiff and claims the thing (petere ab aliquo) from the true owner (now defendant) who has regained possession, presumably using an action like the actio Publiciana.
  3. §44.2.24.prat si res iudicata non sit — A formulaic expression of a replication (replicatio). Literally meaning 'but if the matter has not been decided', it functions as a double negative asserting that 'the matter has indeed already been decided (res iudicata)'. It serves to block the owner's defense that the thing is not the buyer's, by relying on the prior judgment of acquittal.

Cite this passage

Justinian I, The Digest of Justinian §44.2.24.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:44.2.24.pr

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