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Justinian I · The Digest of Justinian §46.7.11.pr

Liability of Guarantors upon Death of Slave and Abandonment

Passage 7821 of 9271 · Latin

Summary

This section discusses whether guarantors remain liable when a claimed slave dies after the joinder of issue and the possessor subsequently abandons the suit, concluding that they are indeed liable because it remains necessary to obtain a judgment to preserve actions for eviction and fruits.

[PAULUS libro septuagensimo quarto ad edictum. ] §46.7.11.prSi seruus, qui in rem actione petebatur, lite contestata decesserit, deinde possessor litem deseruerit, quidam fideiussores eius pro lite datos non teneri putant, quia mortuo homine nulla iam res sit: quod falsum est, quoniam expedit de euictione actionis conseruandae causa, item fructuum nomine rem iudicari.
[PAULUS, On the Edict, book 74.] If a slave, who was being claimed by an action in rem, dies after joinder of issue, and then the possessor abandons the suit, some think that his guarantors given for the suit are not liable, on the ground that, the man having died, there is now no property in existence. But this is false, since it is advantageous for the case to be decided, for the sake of preserving an action concerning eviction, and likewise on account of the fruits.

Notes

  1. §46.7.11.prlite contestata — Ablative absolute. It refers to the stage of "joinder of issue" (litis contestatio) in civil procedure, indicating that this occurred prior in time to the verb decesserit.
  2. §46.7.11.practionis conseruandae causa — Gerundive construction expressing purpose with causa + genitive. conseruandae agrees with the noun actionis, meaning "for the sake of preserving the action."
  3. §46.7.11.prrem iudicari — Accusative with infinitive clause serving as the subject of the impersonal verb expedit (it is advantageous). The passive infinitive iudicari is used, meaning "for the matter to be decided (by judgment)."

Cite this passage

Justinian I, The Digest of Justinian §46.7.11.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:46.7.11.pr

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