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Justinian I · The Digest of Justinian §47.7.7.pr-47.7.7.7

Clandestine Felling, Liability for Orders, and Inheritability

Passage 7975 of 9271 · Latin

Summary

Ulpian explains the definition of 'secretly' in cutting down trees, the distinction between cutting and uprooting under the Lex Aquilia, liability for commands given to slaves or free persons, and the transmissibility of the action.

[ULPIANUS libro trigensimo octauo ad edictum. ] §47.7.7.prFurtim caesae arbores uidentur, quae ignorante domino celandique eius causa caeduntur.
[ULPIANUS on the Edict, book 38] Trees are deemed to be cut down secretly which are cut down without the owner's knowledge and for the purpose of concealing it from him.
§47.7.7.1Nec esse hanc furti actionem scribit Pedius, cum et sine furto fieri possit, ut quis arbores furtim caedat.
And Pedius writes that this is not an action for theft, since it is possible for someone to cut down trees secretly even without theft occurring.
§47.7.7.2Si quis radicitus arborem euellerit uel exstirpauerit, hac actione non tenetur: neque enim uel caedit uel succidit uel subsecuit: Aquilia tamen tenetur, quasi ruperit.
If anyone tears up a tree by the roots or uproots it, he is not liable under this action; for he has neither cut, nor cut down, nor cut from below; he is, however, liable under the Lex Aquilia, as if he had damaged it.
§47.7.7.3Etiamsi non tota arbor caesa sit, recte tamen agetur quasi caesa.
Even if the whole tree has not been cut down, the action is nevertheless rightly brought as if it had been cut down.
§47.7.7.4Siue autem quis suis manibus, siue dum imperat seruo arbores cingi subsecari caedi, hac actione tenetur.
Moreover, whether someone does it with his own hands, or commands his slave to girdle, cut under, or cut down trees, he is liable under this action.
idem et si libero imperet.
The same applies if he commands a free person.
§47.7.7.5Quod si seruo suo non praeceperit dominus, sed ipse sua uoluntate id admiserit, Sabinus ait competere noxale, ut in ceteris maleficiis: quae sententia uera est.
But if the master did not command his slave, but the slave committed it of his own free will, Sabinus says that a noxal action is available, as in the case of other delicts; and this opinion is correct.
§47.7.7.6Haec actio etiamsi poenalis sit, perpetua est.
Although this action is penal, it is perpetual.
sed aduersus heredem non datur: heredi ceterisque successoribus dabitur.
However, it is not granted against an heir; it will, however, be granted to an heir and other successors.
§47.7.7.7Condemnatio autem eius duplum continet
Moreover, the condemnation in it comprises double the amount.

Notes

  1. §47.7.7.prignorante domino celandique eius causa — `ignorante domino` is an ablative absolute using the present participle, meaning 'with the owner being ignorant.' `celandique eius causa` consists of the gerundive `celandi` and the pronoun `eius` (referring to `dominus`) in the genitive modifying `causa` to express purpose ('for the purpose of concealing it from him').
  2. §47.7.7.1fieri possit, ut quis arbores furtim caedat — The `ut`-clause (`ut ... caedat`) serves as the substantive subject (noun clause) of the impersonal `fieri possit` ('it can happen that...'). The subjunctive present `caedat` is required by the conjunction `ut`.
  3. §47.7.7.4arbores cingi subsecari caedi — An infinitive construction acting as the object of the verb `imperat` ('commands'). `cingi`, `subsecari`, and `caedi` are all present passive infinitives, with the accusative `arbores` functioning as their subject.
  4. §47.7.7.6aduersus heredem non datur: heredi ceterisque successoribus dabitur — Contrasts the prepositional phrase with the accusative `aduersus heredem` ('against the heir', as defendant) with the simple dative `heredi` ('to the heir', as plaintiff). This illustrates the Roman legal principle of the passive intransmissibility (non-transmission against the wrongdoer's heirs) and active transmissibility (transmission to the victim's heirs) of penal actions.

Cite this passage

Justinian I, The Digest of Justinian §47.7.7.pr-47.7.7.7. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:47.7.7.pr-47.7.7.7

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