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Justinian I · The Digest of Justinian §47.2.23.pr

Liability of an Impubes for Theft and Lex Aquilia

Passage 7884 of 9271 · Latin

Summary

This section discusses the tort liability of an impubes, stating that they can commit theft if they are capable of malice, and that they can be sued under the Lex Aquilia if they are capable of negligence.

[ULPIANUS libro quadragesimo primo ad Sabinum. ] §47.2.23.prImpuberem furtum facere posse, si iam doli capax sit, Iulianus libro uicensimo secundo digestorum scripsit: item posse cum impubere damni iniuria agi, quia id furtum ab impubere fit.
[ULPIANUS in the forty-first book on Sabinus.] Julianus wrote in the twenty-second book of his Digests that an impubes can commit theft, if he is already capable of malice; likewise, that an action for unlawful damage can be brought against an impubes, because that theft is committed by an impubes.
sed modum esse adhibendum ait: nam in infantes id non cadere.
But he says that a limit must be applied; for this does not apply to infants.
nos putamus cum impubere culpae capace Aquilia agi posse.
We think that an action under the Lex Aquilia can be brought against an impubes who is capable of negligence.
item uerum est, quod Labeo ait, nec ope impuberis furto facto teneri eum.
It is likewise true, as Labeo says, that if a theft is committed with the aid of an impubes, he is not held liable.

Notes

  1. §47.2.23.prImpuberem — Refers to a person who has not reached puberty (under 14 for males, under 12 for females), serving as the category for determining legal and tortious capacity.
  2. §47.2.23.prculpae capace — Ulpian's own qualification; in contrast to Julian's 'capacity for malice' (doli capax), he asserts that a 'capacity for negligence' (culpae capax) is required to bring an action under the Lex Aquilia.
  3. §47.2.23.prnec ope impuberis furto facto teneri eum — The conjunction nec negates the accusative-with-infinitive clause eum ... teneri. ope impuberis means 'by the aid of the impubes,' and furto facto is an ablative absolute meaning 'a theft having been committed (by another),' supporting Labeo's view that the impubes is not held liable for aiding another's theft.

Cite this passage

Justinian I, The Digest of Justinian §47.2.23.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:47.2.23.pr

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