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Justinian I · The Digest of Justinian §44.7.4.pr

Obligations from Delict and Their Difference from Contracts

Passage 7289 of 9271 · Latin

Summary

Gaius lists the obligations arising from wrongdoing (such as theft, damage, robbery, and injury) and explains that, unlike contractual obligations, they are established solely by the fact of the wrongdoing itself.

[GAIUS libro tertio aureorum. ] §44.7.4.prEx maleficio nascuntur obligationes, ueluti ex furto, ex damno, ex rapina, ex iniuria.
[GAIUS, from the third book of the Golden Writings.] Obligations arise from wrongdoing, as for instance from theft, damage, robbery, or injury.
quae omnia unius generis sunt: nam hae re tantum consistunt, id est ipso maleficio, cum alioquin ex contractu obligationes non tantum re consistant, sed etiam uerbis et consensu.
All of which are of one and the same class: for these are established by the fact alone, that is, by the wrongdoing itself, whereas on the other hand obligations arising from contract are established not only by a thing, but also by words and by consent.

Notes

  1. §44.7.4.prunius generis — Genitive of description serving as a predicate, indicating that all the mentioned delicts belong to "one and the same class" or share the same nature.
  2. §44.7.4.prre — Ablative. While in contract law `re` (by a thing) refers to the establishment of an obligation by the delivery of a physical object (real contract), in the context of delict it means "by the fact" or "by the deed itself", as clarified by the subsequent phrase `ipso maleficio`.
  3. §44.7.4.prcum alioquin — The conjunction `cum` introduces a clause of contrast with the subjunctive `consistant` ("whereas", "while on the other hand"). `alioquin` ("otherwise", i.e., in the case of contracts) highlights the difference in nature between delicts and contracts.

Cite this passage

Justinian I, The Digest of Justinian §44.7.4.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:44.7.4.pr

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