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Justinian I · The Digest of Justinian §47.2.32.pr-47.2.32.1

Assessment and Proof of Damages in Theft of Tablets

Passage 7893 of 9271 · Latin

Summary

Discusses how the plaintiff's interest (damages) should be valued in an action for the theft of tablets, and addresses the greater difficulty of proving such interest under the Aquilian Law with concrete examples.

[PAULUS libro nono ad Sabinum. ] §47.2.32.prQuidam tabularum dumtaxat aestimationem faciendam in furti actione existimant, quia, si iudici, apud quem furti agatur, possit probari, quantum debitum fuerit, possit etiam apud eum iudicem eadem probare, apud quem pecuniam petat: si uero in furti iudicio probare non potest, ne illud quidem posse ostendi, quanti eius intersit.
[PAULUS in the ninth book on Sabinus.] Some think that in the action for theft only the valuation of the tablets is to be made, because, if it can be proved to the judge before whom the action for theft is brought how much was owed, he can also prove the same before that judge from whom he claims the money; but if indeed he cannot prove it in the trial for theft, not even this can be shown, namely, how much it is of interest to him.
sed potest post furtum factum tabulas nanctus esse actor, ut ex eo probet, quanti sua interfuerit, si tabulas nanctus non esset.
But the plaintiff may, after the theft has been committed, have obtained the tablets, so that he may prove from this how much it would have been of interest to him if he had not obtained them.
§47.2.32.1De lege Aquilia maior quaestio est, quemadmodum possit probari, quanti eius intersit: nam si potest alias probare, non patitur damnum.
Under the Aquilian law, there is a greater question as to how it can be proved how much it is of interest to him; for if he can prove it by other means, he suffers no damage.
quid ergo, si forte pecuniam sub condicione credidit et interim testium ei copia est, testimonio quorum probationem habeat, qui possunt mori pendente condicione? aut puta me petisse creditum et, quia testes et signatores, qui rem meminissent, praesentes non haberem, uictum rem amississe: nunc uero, cum furti agam, eorum memoria et praesentia ad fidem creditae pecuniae uti possum.
What then if, for example, he lent money under a condition, and in the meantime has an abundance of witnesses by whose testimony he has proof, who may die while the condition is pending? Or suppose that I sued for a loan, and because I did not have present the witnesses and signers who remembered the transaction, I was defeated and lost the case: but now indeed, when I sue for theft, I can use their memory and presence to establish the credit of the money lent.

Notes

  1. §47.2.32.prquanti eius intersit — A combination of the genitive of value (quanti) used with the impersonal verb interest, and the genitive of the pronoun (eius) representing the person concerned. This construction expresses the total interest or financial stake (id quod interest) of the plaintiff. When referring to the third-person reflexive subject, the ablative feminine singular of the possessive adjective (sua interfuerit) is used instead of a genitive pronoun.
  2. §47.2.32.1testimonio quorum probationem habeat, qui possunt mori — A structure with double relative clauses. The antecedent of testimonio is testium, which also serves as the antecedent for the relative pronoun quorum. Furthermore, the subsequent relative pronoun qui also refers back to testium, meaning 'witnesses by whose testimony he has proof, and who may die while the condition is pending.'
  3. §47.2.32.1uictum rem amississe — The predicate part in an accusative-with-infinitve (A.C.I.) construction, serving as the object of the verb puta (suppose). The participle uictum agrees with me (implied or stated as the subject of the A.C.I.). Literally, 'that I, having been defeated, lost the matter/claim.'

Cite this passage

Justinian I, The Digest of Justinian §47.2.32.pr-47.2.32.1. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:47.2.32.pr-47.2.32.1

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