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Justinian I · The Digest of Justinian §44.7.49.pr

Contractual Actions Involving Delict and Peculium Liability

Passage 7334 of 9271 · Latin

Summary

This section explains that contractual actions are available against heirs even if a delict is involved, illustrating with tutors or depositaries, and states that an action on the peculium, not a noxal action, applies to such acts by children or slaves.

[IDEM libro octauo decimo ad Plautium. ] §44.7.49.prEx contractibus uenientes actiones in heredes dantur, licet delictum quoque uersetur, ueluti cum tutor in tutela gerenda dolo fecerit aut is apud quem depositum est: quo casu etiam cum filius familias aut seruus quid tale commisit, de peculio actio datur, non noxalis.
Actions arising from contracts are granted against heirs, even though a delict is also involved, as, for example, when a tutor has acted with malice in administering a tutelage, or he with whom a deposit was made has done so. In which case, even when a filiusfamilias or a slave has committed such an act, an action on the peculium is granted, and not a noxal action.

Notes

  1. 44.7.49.prlicet delictum quoque uersetur — The conjunction licet takes the subjunctive (uersetur) to form a concessive clause meaning 'even though'. While actions arising purely from a delict (delictum) generally do not lie against heirs, this clause indicates that if the action is based on a contract, it is available against heirs even if a delictual element (such as fraud) is involved.
  2. 44.7.49.prin tutela gerenda — A gerundive construction in which the gerundive gerenda agrees with the noun tutela in the ablative case after the preposition in, meaning 'in administering a tutelage' or 'in the conduct of guardianship'.
  3. 44.7.49.prquo casu — A connective use of the relative pronoun quo agreeing with casu, referring back to the situation described in the preceding clause (where a contractual obligation involves a delictual element like fraud), translating to 'in which case'.
  4. 44.7.49.prde peculio actio datur, non noxalis — This phrase defines the nature of the action against the master/paterfamilias for acts committed by those under his power. Since the action is based on a contract (such as deposit) rather than a pure delict, an action on the peculium (actio de peculio) is granted up to the value of the peculium, rather than a noxal action (actio noxalis) which would involve surrendering the wrongdoer.

Cite this passage

Justinian I, The Digest of Justinian §44.7.49.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:44.7.49.pr

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