Humanitext Reader

Justinian I · The Digest of Justinian §47.2.41.pr-47.2.41.3

Actions for Theft during Captivity and Liability of the Doer

Passage 7902 of 9271 · Latin

Summary

The text discusses the victim's right to an action for theft committed during captivity, the transfer of actions to an adrogator, and the rule that liability for a wrong follows the person as long as the wrongdoer is alive.

[ULPIANUS libro quadragensimo primo ad Sabinum. ] §47.2.41.prSi, cum quis in hostium potestate esset, furtum ei factum sit et postliminio redierit, poterit quis dicere eum furti habere actionem.
[ULPIAN in his forty-first book on Sabinus.] If, while someone was in the power of the enemy, a theft was committed against him, and he has returned by postliminium, one might well say that he has the action for theft.
§47.2.41.1Adrogatorem posse furti agere, scilicet eius furti nomine, quod factum est ei quem adrogauit, antequam eum adrogaret, certum est: ceterum si postea, nulla erit dubitatio.
It is certain that an adrogator can bring an action for theft, namely on account of that theft which was committed against the person he adrogated before he adrogated him; but if it was committed afterwards, there will be no doubt.
§47.2.41.2Quamdiu uiuit is qui furtum fecit, non perit furti actio: aut enim sui iuris est is qui furtum fecit, et cum ipso actio est, aut alieni iuris esse coepit, et actio furti cum eo est, cuius potestati subiectus est: et hoc est quod dicitur 'noxa caput sequitur'. §47.2.41.3Si quis post noxam admissam hostium seruus fuerit factus, uidendum est, an extinguatur actio.
As long as the person who committed the theft lives, the action for theft does not perish; for either he who committed the theft is independent (sui iuris), and the action lies against himself, or he has begun to be dependent (alieni iuris), and the action for theft lies against the person to whose power he is subjected; and this is what is meant by the saying, "the liability follows the person." If, after a wrongful act has been committed, someone has become a slave of the enemy, we must consider whether the action is extinguished.
et Pomponius scripsit extingui actionem, et si fuerit reuersus, postliminio uel quo alio iure renasci eam actionem debere: et ita utimur.
And Pomponius wrote that the action is extinguished, but that if he should return, that action ought to be reborn by postliminium or by some other right; and this is the rule we follow.

Notes

  1. §47.2.41.preum furti habere actionem — An accusative and infinitive clause introduced by `poterit quis dicere`. The subject accusative `eum` of the infinitive `habere` refers back to the indefinite pronoun `quis` in the conditional clause (the victim of the theft).
  2. §47.2.41.2noxa caput sequitur — The legal maxim meaning "the liability follows the person." The liability for a wrongful act (noxa) follows the wrongdoer (caput). If the wrongdoer becomes dependent (alieni iuris) or a slave, the liability shifts to the person currently holding power over them, who must either defend the action or surrender the wrongdoer.
  3. §47.2.41.3renasci eam actionem debere — The second accusative and infinitive clause dependent on `Pomponius scripsit`. The subject of the infinitive `debere` is `eam actionem`.

Cite this passage

Justinian I, The Digest of Justinian §47.2.41.pr-47.2.41.3. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:47.2.41.pr-47.2.41.3

Please note the AI-draft status of the translation and the date accessed.

Translation, notes and summary are AI-generated drafts, revised through reader feedback.