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Justinian I · The Digest of Justinian §45.1.84.pr

Late Performance and Joinder of Issue in Building Stipulations

Passage 7431 of 9271 · Latin

Summary

In a stipulation for building an apartment, even after the deadline has passed, the debtor can still be released by completing the construction as long as the plaintiff has not yet joined issue; however, performing the construction after the joinder of issue is of no avail.

[IDEM libro septuagensimo quarto ad edictum. ] §45.1.84.prSi insulam fieri stipulatus sim et transierit tempus, quo potueris facere, quamdiu litem contestatus non sim, posse te facientem liberari placet: quod si iam litem contestatus sim, nihil tibi prodesse, si aedifices.
[The same, On the Edict, Book 74] If I have stipulated for an apartment building to be constructed, and the time in which you could have done so has passed, as long as I have not joined issue in the lawsuit, it is accepted that you can be released by performing the construction; but if I have already joined issue, it is of no benefit to you if you should build.

Notes

  1. §45.1.84.prinsulam fieri — Here, *insula* refers to an apartment building (tenement block) common in ancient Rome, rather than an 'island', and *fieri* (passive infinitive of *facio*) means the 'construction' of the building.
  2. §45.1.84.prlitem contestatus sim — The phrase *litem contestari* (here in the subjunctive perfect of the deponent verb *litem contestor*) refers to 'joinder of issue' (*litis contestatio*) in Roman civil procedure. It is a decisive stage where the terms of the litigation are formulated, after which the nature of the obligation changes.
  3. §45.1.84.prfacientem — A present participle (accusative singular masculine) agreeing with *te*, the subject accusative of the infinitive clause. It functions circumstantially to express condition or means ('by performing the construction').

Cite this passage

Justinian I, The Digest of Justinian §45.1.84.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:45.1.84.pr

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