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Justinian I · The Digest of Justinian §46.7.20.pr

Adverse Judgment on Appeal and Judgment Guarantees

Passage 7830 of 9271 · Latin

Summary

In a stipulation guaranteeing the execution of the judgment of judge Sempronius, it is ruled that the obligation is not legally triggered when a different judge in an appeal condemns the defender, prompting the addition of a clause for substituted judges.

[SCAEUOLA libro uicensimo digestorum. ] §46.7.20.prCum apud Sempronium iudicem datum reus defenderetur, stipulatione cautum est, ut, quod Sempronius iudex iudicasset, praestaretur: a cuius sententia petitor appellauit et, cum apud competentem appellationi iudicem res ageretur, defensore condemnato quaesitum est, an stipulatio commissa esset.
[SCAEVOLA, Digests, book 20.] When a defendant was being defended before Sempronius, the appointed judge, security was provided by a stipulation that whatever the judge Sempronius should decide should be paid. The plaintiff appealed from his decision, and while the case was being tried before the judge competent for the appeal, the defender having been condemned, it was asked whether the stipulation had been forfeited.
respondit secundum ea quae proponerentur non esse iure commissam.
He answered that, according to the facts proposed, it had not been legally forfeited.
CLAUDIUS: ideo stipulatione adicitur: 'quiue in eius locum substitutus erit'.
CLAUDIUS: For this reason, there is added to the stipulation: 'or whoever shall have been substituted in his place'.

Notes

  1. §46.7.20.prcompetentem appellationi — The word appellationi is a dative case modifying the participial adjective competentem, meaning 'competent for the appeal' or 'having jurisdiction over the appeal'.
  2. §46.7.20.prcommissam — The verb committere (here in the passive perfect infinitive) is a legal technical term used in connection with conditional stipulations, meaning 'to be forfeited' or 'to have the condition fulfilled so that the liability or penalty is incurred'.
  3. §46.7.20.prrespondit secundum ea quae proponerentur non esse iure commissam — The implied subject of non esse iure commissam is the stipulatio from the preceding sentence. The ruling is based on the logic that since the original stipulation guaranteed what the judge Sempronius decided (quod Sempronius iudex iudicasset), a decision by a different judge on appeal (competens iudex) does not satisfy the literal condition of the stipulation, meaning it is not legally forfeited.

Cite this passage

Justinian I, The Digest of Justinian §46.7.20.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:46.7.20.pr

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