Humanitext Reader

Justinian I · The Digest of Justinian §44.4.9.pr

Defense of Fraud when Procurator is Bribed to Lose

Passage 7272 of 9271 · Latin

Summary

It discusses how a principal can defend against an action on a judgment using the exception of dolus malus if their procurator accepted a bribe to lose the case, and explains why the bribe cannot be recovered from the procurator.

[IDEM libro trigensimo secundo ad edictum. ] §44.4.9.prSi procurator rei pecunia accepta damnari se passus sit et cum domino iudicati agatur, tuebitur se doli mali exceptione.
[The same, in the thirty-second book on the Edict.] If the procurator of the defendant, having accepted money, has allowed himself to be condemned, and an action on the judgment is brought against the principal, the latter shall defend himself by the exception of dolus malus.
nec hoc, quod acceperit procurator, auferri ab eo potest: nam turpiter accepta pecunia iustius penes eum est qui deceptus sit quam qui decepit.
Nor can that which the procurator accepted be taken away from him; for money dishonorably accepted is more justly in the hands of him who was deceived than of him who deceived.

Notes

  1. §44.4.9.prtuebitur — The subject of the verb `tuebitur` (third-person singular future) is `dominus` (the principal) appearing in the preceding clause `cum domino ... agatur`. It indicates that the principal, against whom the action on the judgment (actio iudicati) is brought after the agent was bribed to lose, will defend themselves using the exception of dolus malus.
  2. §44.4.9.preum ... qui deceptus sit — Here `eum` refers to the agent (procurator). While the opposing party who paid the bribe to cause the defeat is "the one who deceived" (qui decepit), the agent who yielded to the temptation and accepted the money is described as "the one who was deceived" (qui deceptus sit). Based on the principle that in transactions with an immoral cause (turpis causa), the position of the possessor is stronger than that of the giver, the money cannot be recovered from the agent.

Cite this passage

Justinian I, The Digest of Justinian §44.4.9.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:44.4.9.pr

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