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Justinian I · The Digest of Justinian §5.1.61.pr-5.1.61.1

Scope of Matters at Issue and Limits of the Latrunculator

Passage 942 of 9271 · Latin

Summary

Ulpian presents the common view regarding the scope of matters subject to trial and Celsus' critique, proposing instead that everything is included unless specifically excluded, while also noting that a bandit-catcher (latrunculator) lacks jurisdiction over civil pecuniary matters.

[ULPIANUS libro uicensimo sexto ad edictum. ] §5.1.61.prSolemus quidem dicere id uenire in iudicium, de quo actum est inter litigantes: sed Celsus ait periculose esse ex persona rei hoc metiri, qui semper ne condemnetur hoc dicet non conuenisse.
[ULPIANUS, on the Edict, Book XXVI.] We are, indeed, accustomed to say that what has been agreed upon between the litigants comes into judgment; but Celsus says that it is dangerous to estimate this from the person of the defendant, who, in order not to be condemned, will always say that this was not agreed upon.
quid ergo? melius est dicere id uenire in iudicium non de quo actum est ut ueniret, sed id non uenire, de quo nominatim actum est ne ueniret.
What then? It is better to say, not that that comes into judgment about which it was agreed that it should come, but that that does not come into judgment about which it was specifically agreed that it should not come.
§5.1.61.1Latrunculator de re pecuniaria iudicare non potest.
A latrunculator cannot judge in a pecuniary matter.

Notes

  1. §5.1.61.prpericulose esse — The adverb `periculose` is used impersonally with the copula `esse` to mean "it is dangerous." In standard classical Latin, the neuter adjective `periculosum esse` would be expected, but here the adverb functions predicatively.
  2. §5.1.61.prnon de quo actum est ut ueniret — A contrastive structure within the accusative and infinitive construction introduced by `melius est dicere`. Rather than requiring an affirmative agreement to include an issue in the trial, it establishes the legal principle that everything is included by default unless there is an explicit negative agreement to exclude it.
  3. §5.1.61.1Latrunculator — While originally referring to a referee of a board game (latrunculi), in Roman law it refers to a special provincial officer (bandit-catcher) in charge of hunting down and arresting bandits (latrones) with limited criminal jurisdiction. This passage dictates that such an officer has no jurisdiction over civil pecuniary matters (res pecuniaria).

Cite this passage

Justinian I, The Digest of Justinian §5.1.61.pr-5.1.61.1. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:5.1.61.pr-5.1.61.1

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