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Justinian I · The Digest of Justinian §48.5.32.pr

Calculation of the Five-Year Prescription for Adultery

Passage 8206 of 9271 · Latin

Summary

This section discusses the method of calculating the five-year prescription period for adultery (calculated as continuous time) and the equitable exception where time spent on a prior prosecution is excluded from this period.

[IDEM libro secundo de adulteriis. ] §48.5.32.prQuinquennium non utile, sed continuo numerandum est.
[BY THE SAME AUTHOR, On Adultery, Book II.] The five-year period is to be calculated not by including only available days, but continuously.
quid ergo fiet, si prior mulier rea facta sit et ideo adulter eodem tempore reus fieri non potuit et diu tracta lite quinquennium transierit? quid si is, qui intra quinquennium quem postulauerat, non peregerit aut praeuaricatus est et alius eundem repetere uelit et quinquennium transactum sit? aequum est computationi quinquennii eximi id tempus, quod per postulationem praecedentem consumptum sit.
What, then, will happen if the wife is accused first, and for that reason the adulterer could not be accused at the same time, and, the lawsuit being protracted for a long time, the five-year period has expired? What if someone who, within five years, had accused a person does not complete the prosecution or has prevaricated, and another person wishes to prosecute the same defendant, and the five-year period has elapsed? It is equitable that the time spent on the preceding prosecution be excluded from the calculation of the five-year period.

Notes

  1. §48.5.32.prQuinquennium non utile, sed continuo — The contrast between 'utile' and 'continuo' refers to the Roman law distinction between 'tempus utile' (useful time, counting only the days when action was legally possible) and 'tempus continuum' (continuous time, running uninterruptedly according to the calendar). The five-year prescription for adultery is calculated as the latter.
  2. §48.5.32.pris, qui intra quinquennium quem postulauerat, non peregerit — The relative pronoun 'quem' has as its antecedent the omitted direct object (such as 'eum') of the verb 'peregerit'. The structure is reconstructed as 'is qui [eum], quem postulauerat, non peregerit', meaning 'he who has not completed the prosecution of the person whom he had accused within five years'.
  3. §48.5.32.prcomputationi quinquennii eximi id tempus — The dative 'computationi' is a dative of separation depending on the passive infinitive 'eximi', meaning 'to be excluded from the calculation'. This infinitive clause functions as the subject of the impersonal 'aequum est' (it is equitable).

Cite this passage

Justinian I, The Digest of Justinian §48.5.32.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:48.5.32.pr

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