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Justinian I · The Digest of Justinian §49.1.10.pr-49.1.10.4

Individual Appeals and Scope of Benefit in Joint Actions

Passage 8474 of 9271 · Latin

Summary

Ulpian discusses the necessity of separate appeals for individual judgments, the conditions under which combined sums allow an appeal to the emperor, the sufficiency of a single appeal based on joint accounts, the division of liability when multiple persons are condemned in a single sum, and the requirements for one party's appeal to benefit non-appealing co-parties in a common cause.

[ULPIANUS libro octauo disputationum. ] §49.1.10.prSi qui separatim fuerint condemnati, quamuis ex eadem causa, pluribus eis appellationibus opus est.
[ULPIAN, from the eighth book of disputations.] If persons have been condemned separately, although from the same cause, several appeals are necessary for them.
§49.1.10.1Si quis, cum una actione ageretur, quae plures species in se habeat, pluribus summis sit condemnatus, quarum singulae notionem principis non faciunt, omnes autem coniunctae faciunt: poterit ad principem appellare.
If someone, when an action is brought in a single lawsuit which contains several counts within itself, is condemned in several sums, of which each individual sum does not justify the cognizance of the emperor, but all of them combined do so: he will be able to appeal to the emperor.
§49.1.10.2Sed cum aduersus plures probatae essent rationes quae eis nocerent, sufficit eis una appellatio, quia uno titulo comprobatarum rationum omnes conueniebantur.
But when accounts which are harmful to them are proved against several persons, a single appeal is sufficient for them, because they were all sued under a single title of approved accounts.
§49.1.10.3Quotiens autem plures in unam summam condemnantur, utrum una sententia est et quasi plures in unam summam rei sint promittendi, ut unusquisque eorum in solidum teneatur, an uero scinditur in personas sententia, quaeritur.
Moreover, whenever several persons are condemned in a single sum, it is questioned whether the judgment is single and they are, as it were, several promissors of a single sum, so that each of them is liable for the whole, or whether in truth the judgment is split among the persons.
et Papinianus respondit scindi sententiam in personas atque ideo eos qui condemnati sunt uiriles partes debere.
And Papinian replied that the judgment is split among the persons, and therefore those who have been condemned owe equal shares.
§49.1.10.4Quod est rescriptum in communi causa, quotiens alter appellat, alter non, alterius uictoriam ei proficere qui non prouocauit, hoc ita demum probandum est, si una eademque causa fuit defensionis: ceterum si diuersae, alia causa est.
As to the rescript that in a common cause, whenever one appeals and the other does not, the victory of the one benefits the one who did not appeal, this is only to be approved if the cause of defence was one and the same; but if they were different, it is another matter.
ut in duobus tutoribus procedit, si alter tutelam gesserat, alter non attigerat et is qui non gesserat prouocauit: iniquum est enim, qui idcirco adgnouerat sententiam, quoniam gessisse se scit, propter appellationem eius qui non gesserat optinere.
As happens in the case of two tutors, if one had administered the guardianship and the other had not touched it, and the one who had not administered it appealed; for it is unjust that he who had accepted the judgment precisely because he knew he had administered it, should win because of the appeal of the one who had not administered it.

Notes

  1. §49.1.10.3rei ... promittendi — A technical legal term referring to joint debtors who promised the same performance in a stipulatio (verbal contract). Used here in the plural `rei promittendi` to contrast a joint and several liability under the judgment with a liability split into equal shares.
  2. §49.1.10.4Quod est rescriptum ... hoc — The relative clause starting with `Quod est rescriptum` at the beginning of the sentence functions as a noun clause explaining in advance the content of the demonstrative pronoun `hoc` (prolepsis), which serves as the subject of the main clause. The main structure is "as to the rescript that..., this is only to be approved if...".
  3. §49.1.10.4optinere — Used absolutely (without an object) in the legal sense of "to prevail," "to win the lawsuit," or "to maintain one's position."

Cite this passage

Justinian I, The Digest of Justinian §49.1.10.pr-49.1.10.4. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:49.1.10.pr-49.1.10.4

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