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Justinian I · The Digest of Justinian §48.5.4.pr-48.5.4.2

Time Limits for Adultery Accusations and Rights of Husbands and Outsiders

Passage 8178 of 9271 · Latin

Summary

This passage discusses the priority of accusation and the running of time limits between a husband and a father, the time limits for outsiders to accuse, and the husband's right to renew an accusation if an outsider has already initiated one.

[IDEM libro octauo disputationum. ] §48.5.4.prSi maritus praeuenerit accusareque instituerit, tempora non cedunt patri, quod accusationem instituere non potest, sic tamen, ut, quoad unus occupet, utrique tempora cedant, ubi uero maritus occupauit, residua tempora ei, qui occupare non potest, non cedant.
[The same, in the eighth book of Disputes.] If the husband has forestalled the other and begun to accuse, the times do not run for the father, because he cannot begin an accusation; provided, however, that until one of them occupies the right, the times run for both, but once the husband has occupied it, the remaining times do not run for the one who cannot occupy it.
quod et in eo dici potest, qui ab adultero uel adultera coepit: nam aduersus eum, aduersus quem non coepit, desinunt ei tempora cedere.
This can also be said in the case of one who has begun with the male adulterer or the female adulterer: for against the person against whom he did not begin, the times cease to run for him.
haec in maritis et patribus dicta sunt.
These things have been said regarding husbands and fathers.
§48.5.4.1Extraneis autem, qui accusare possunt, accusandi facultas post maritum et patrem conceditur: nam post sexaginta dies quattuor menses extraneis dantur et ipsi utiles.
But to outsiders who are able to accuse, the capacity to accuse is granted after the husband and the father: for after sixty days, four months are given to outsiders, and these themselves are useful days.
§48.5.4.2Si ante extraneus instituerit accusationem, an superuenienti marito permittatur accusatio, quaeritur.
If an outsider has begun the accusation beforehand, it is asked whether the accusation is permitted to the husband who intervenes.
et magis arbitror hoc quoque casu maritum audiendum, si non neglegentia praeuentus est.
And I am rather of the opinion that in this case too the husband should be heard, if he was not forestalled through negligence.
et ideo et si accusatione instituta absoluta sit mulier extraneo accusante, tamen marito debet permitti restaurare accusationem, si idoneas causas allegare possit, quibus impeditus non instituit accusationem.
And therefore, even if, after an accusation has been instituted, the woman is acquitted upon the accusation of an outsider, yet the husband ought to be permitted to renew the accusation, if he can allege suitable causes by which he was prevented from instituting the accusation.

Notes

  1. §48.5.4.prtempora non cedunt — The phrase 'tempora cedere' (times run) is a legal idiom meaning that the statutory period for bringing an action is running. Here it indicates that when one party with priority initiates the accusation, the countdown of the period ceases to run for the other party.
  2. §48.5.4.prquoad unus occupet — The conjunction 'quoad' with the subjunctive 'occupet' denotes a limit ('until'). In this context, 'occupare' refers to actually exercising and securing the preferential right of accusation.
  3. §48.5.4.prqui ab adultero uel adultera coepit — 'One who has begun with the male adulterer or the female adulterer.' This refers to a situation where one of the co-defendants of the crime of adultery (the male accomplice or the wife) is prosecuted first. In this case, the time limit for accusing the remaining party ceases to run for him.
  4. §48.5.4.1utiles — An adjective modifying the implicit 'dies' (days), referring to 'dies utiles' (useful days), which represents a method of calculating time where only those days are counted on which it was physically and legally possible to take legal action.
  5. §48.5.4.2maritum audiendum — A gerundive in a predicate use with 'esse' omitted. It forms the predicate of an accusative with infinitive clause dependent on the main verb 'arbitror', meaning 'that the husband ought to be heard' (i.e., allowed to bring his accusation).

Cite this passage

Justinian I, The Digest of Justinian §48.5.4.pr-48.5.4.2. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:48.5.4.pr-48.5.4.2

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