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Justinian I · The Digest of Justinian §5.3.23.pr-5.3.23.1

Scope of Restitution of Price and Remaining Enrichment

Passage 1020 of 9271 · Latin

Summary

Discusses whether the price a bona fide possessor must restore is limited to the remaining enrichment, and clarifies that penalties received due to late payment of the price should also be restored as part of the total enrichment.

[ULPIANUS libro quinto decimo ad edictum. ] §5.3.23.prUtrum autem omne pretium restituere debebit bonae fidei possessor an uero ita demum, si factus sit locupletior, uidendum: finge pretium acceptum uel perdidisse uel consumpsisse uel donasse.
[ULPIANUS in the fifteenth book on the Edict.] However, it must be considered whether a bona fide possessor will have to restore the whole price, or indeed only if he has been made richer. Imagine that he has either lost, consumed, or given away the received price.
et uerbum quidem peruenisse ambiguum est, solumne hoc contineret, quod prima ratione fuerit, an uero et id quod durat.
Indeed, even the word 'peruenisse' is ambiguous, whether it contains only this which was in the first calculation, or indeed also that which remains.
et puto sequentem clausulam senatus consulti, etsi haec sit ambigua, ut ita demum competat, si factus sit locupletior.
And I think that the following clause of the senate decree, although this itself may be ambiguous, is applicable only if he has been made richer.
§5.3.23.1Proinde si non solum pretium, sed etiam poena tardius pretio soluto peruenerit, poterit dici, quia locupletior in totum factus est, debere uenire, licet de pretio solummodo senatus sit locutus.
Accordingly, if not only the price but also a penalty has come to hand because the price was paid too late, it can be said that, since he has been made richer in total, this also ought to come [into the claim], although the senate spoke only of the price.

Notes

  1. 5.3.23.prperuenisse — The infinitive meaning "to have come to hand," referring to the phrasing used in the senatus consultum of Hadrian. The text discusses the interpretive ambiguity of whether this term includes the entire price initially received or only the profit currently remaining (id quod durat).
  2. 5.3.23.prut ita demum competat — The verb puto (I think) usually takes an accusative with infinitive (AcI) construction, but here it is followed by an ut clause with the subjunctive (competat). This subjunctive clause is used to express the intended application or interpretation of the senatus consultum ("I think it should apply only if...").
  3. 5.3.23.1tardius pretio soluto — pretio soluto is an ablative absolute accompanied by the comparative adverb tardius (later than usual, too late), expressing the cause or reason: "because the price was paid later than it should have been."
  4. 5.3.23.1debere uenire — The verb uenire (to come) is used here in its technical legal sense to mean "to come into the claim" or "to be included in the calculation of the restitution of the inheritance" (an abbreviation of in petitionem uenire).

Cite this passage

Justinian I, The Digest of Justinian §5.3.23.pr-5.3.23.1. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:5.3.23.pr-5.3.23.1

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