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Justinian I · The Digest of Justinian §44.2.27.pr

Criteria for Identifying the Same Action and New Evidence

Passage 7240 of 9271 · Latin

Summary

This chunk presents three criteria to determine whether it is the same action (res iudicata)—the persons, the subject matter, and the cause of action—stating that subjective reasons or post-judgment discovery of new documents do not affect this.

[NERATIUS libro septimo membranarum. ] §44.2.27.prCum de hoc, an eadem res est, quaeritur, haec spectanda sunt: personae, id ipsum de quo agitur, causa proxima actionis.
[NERATIUS, on Parchments, book seven.] When it is asked concerning this point, whether it is the same matter, these things must be looked at: the persons, the very thing which is in dispute, and the immediate cause of the action.
nec iam interest, qua ratione quis eam causam actionis competere sibi existimasset, perinde ac si quis, posteaquam contra eum iudicatum esset, noua instrumenta causae suae repperisset.
And it no longer matters for what reason someone had thought that that cause of action belonged to him, just as if someone, after judgment had been given against him, had found new documents for his case.

Notes

  1. §44.2.27.pran eadem res est — An indirect question clause introduced by an, serving an appositive role to explain the preceding hoc. While classical Latin generally uses the subjunctive in indirect questions, the indicative est is used here.
  2. §44.2.27.prcompetere sibi — The infinitive competere forms an accusative-with-infinitive construction (A.C.I.) with eam causam actionis as its subject, serving as the object of existimasset. competere sibi means 'to belong to oneself' or 'to be competent to oneself.'
  3. §44.2.27.prperinde ac si — A hypothetical comparative expression meaning 'just as if,' which, accompanied by the following subjunctive pluperfect repperisset, presents a contrary-to-fact condition (that finding new evidence after a judgment does not change the determination).

Cite this passage

Justinian I, The Digest of Justinian §44.2.27.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:44.2.27.pr

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