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Justinian I · The Digest of Justinian §45.3.32.pr

Stipulation by Usufructuary Slave and Recovery of Share

Passage 7540 of 9271 · Latin

Summary

It explains that when a slave held in usufruct by two persons stipulates specifically in the name of one of them concerning a matter of common interest, the other usufructuary can recover their share through an equitable action for the division of common property.

[IDEM libro nono ad Plautium. ] §45.3.32.prSi, cum duorum usus fructus esset in seruo, et is seruus uni nominatim stipulatus sit ex ea re, quae ad utrosque pertinet, Sabinus ait, quoniam soli obligatus esset, uidendum esse, quemadmodum alter usuarius partem suam recipere possit, quoniam inter eos nulla communio iuris esset.
[THE SAME, from the ninth book on Plautius.] If, when two persons have the usufruct in a slave, and this slave has stipulated specifically in the name of one of them concerning a matter which relates to both, Sabinus says that, since the promisor is bound to that one alone, it must be considered how the other usufructuary can recover his share, since there is no legal community of right between them.
sed uerius est utili communi diuidundo iudicio inter eos agi posse.
But the more correct view is that an action can be brought between them by an equitable action for the division of common property.

Notes

  1. §45.3.32.prsoli obligatus esset — Since this is a causal clause (quoniam...) inside the indirect speech (the accusative and infinitive clause 'uidendum esse') dependent on 'Sabinus ait', the verb 'obligatus esset' is in the subjunctive (pluperfect). 'soli' (to that one alone) refers to the fact that because the slave stipulated in the name of only one ('uni nominatim'), the obligor (promisor) is bound only to that specific usufructuary.
  2. §45.3.32.prutili communi diuidundo iudicio — Ablative of means. Although the action for division of common property ('communi dividundo iudicio') is strictly applicable only between co-owners, the praetor extends it as an 'equitable' or 'analogous' ('utilis') action to co-usufructuaries who, though not having a strict community of ownership ('communio iuris'), need to resolve their practical partition issues.

Cite this passage

Justinian I, The Digest of Justinian §45.3.32.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:45.3.32.pr

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