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Justinian I · The Digest of Justinian §49.1.14.pr-49.1.14.1

Remedies for Legatees in Collusive Suits and Res Judicata

Passage 8478 of 9271 · Latin

Summary

Ulpian discusses the remedies, such as appeal or separate action, available to legatees and manumitted slaves when their interests are threatened by collusive lawsuits or default of the heir, and notes the limitation of the authority of res judicata in default judgments.

[IDEM libro quarto decimo ad edictum. ] §49.1.14.prSi perlusorio iudicio actum sit aduersus testamentum, an ius faciat iudex, uidendum.
[THE SAME, from the fourteenth book on the Edict.] If an action has been brought against a testament by means of a collusive trial, it must be considered whether the judge makes the law.
et diuus Pius, cum inter coniunctas personas diceretur per collusionem in necem legatariorum et libertatium actum, appellare eis permisit.
And the deified Pius, when it was alleged that an action had been brought through collusion between related parties to the detriment of the legatees and the manumitted, permitted them to appeal.
et hodie hoc iure utimur, ut possint appellare: sed et agere causam apud ipsum iudicem, qui de testamento cognoscit, si suspicantur non ex fide heredem causam agere.
And today we apply this rule of law, so that they can appeal; but they can also conduct the case before the very judge who is hearing the matter of the testament, if they suspect that the heir is not conducting the case in good faith.
§49.1.14.1Quotiens herede non respondente secundum aduersarium sententia datur, rescriptum est nihil nocere neque legatis neque libertatibus.
Whenever judgment is given in favor of the adversary without the heir responding, it has been stated in a rescript that this does no harm either to legacies or to grants of freedom.
et hoc duorum fratrum epistula continetur ad Domitium in haec uerba: 'Quod absente possessore nec quoquam nomine eius respondente pronuntiatum est, non habet rei iudicatae auctoritatem nisi aduersus eum solum qui adesse neglexerit.
And this is contained in a letter of the two brothers to Domitius in these words: 'What has been pronounced in the absence of the possessor, and with no one responding in his name, does not have the authority of a res adjudicata, except against him alone who neglected to appear.
quare his, qui testamento libertates uel legata uel fideicommissa acceperunt, saluae sunt actiones, si quas habuerunt, perinde ac si nihil esset iudicatum: et ideo aduersus eum qui uicit permittimus eis agere'.
Therefore, for those who have received grants of freedom, legacies, or trust-bequests by a testament, their actions, if they had any, are preserved just as if no judgment had been rendered; and for this reason we permit them to bring an action against the one who prevailed.'

Notes

  1. §49.1.14.pran ius faciat iudex — Literally "whether the judge makes the law," referring to whether the judgment establishes a binding legal effect (res judicata) between the parties, and by extension, whether it binds interested third parties.
  2. §49.1.14.prin necem — The preposition in with the accusative of nex ("death"), used here metaphorically to mean the destruction or complete deprivation of legal rights (such as legacies or freedom) rather than physical death.
  3. §49.1.14.1nihil nocere — An accusative with infinitive clause whose logical subject is the state of affairs described in the preceding clause (judgment rendered in favor of the adversary without the heir responding). In indirect speech, it states that such a judgment does no harm to the legacies or grants of freedom.
  4. §49.1.14.1non habet... nisi aduersus eum solum qui adesse neglexerit — Using a double negative (non... nisi), this clause emphasizes the restriction "has authority... only against him alone." It clarifies the subjective limits of res judicata, indicating that the judgment does not bind third parties who were not part of the litigation, but only the defaulting party.

Cite this passage

Justinian I, The Digest of Justinian §49.1.14.pr-49.1.14.1. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:49.1.14.pr-49.1.14.1

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