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Justinian I · The Digest of Justinian §50.16.189.pr

Inclusion of Negative Obligations in Duty to Act

Passage 9003 of 9271 · Latin

Summary

Paulus explains that the term 'to be obliged to do' also includes the negative obligation to abstain from acts contrary to an agreement and to ensure they do not occur.

[IDEM libro trigesimo quarto ad edictum. ] §50.16.189.pr'Facere oportere' et hanc significationem habet, ut abstineat quis ab eo facto, quod contra conuentionem fieret, et curaret ne fiat.
[THE SAME, in the thirty-fourth book on the Edict.] 'To be obliged to do' also has this meaning, that one should abstain from that act which would be done contrary to the agreement, and should see to it that it does not happen.

Notes

  1. §50.16.189.prFacere oportere — An accusative with infinitive phrase 'to be obliged to do'. Here, it indicates a legal extension of interpretation where a term seemingly referring to positive action (facere) is shown to encompass negative obligations (abstineat... as well).
  2. §50.16.189.prabstineat ... curaret — The coordination of the present subjunctive abstineat and the imperfect subjunctive curaret within the appositional ut-clause. Although the main verb habet is in the present tense (which would normally require present subjunctives throughout), there is a shift in tense sequence. This irregularity may stem from linguistic fluctuations in legal style or the influence of a past agreement.

Cite this passage

Justinian I, The Digest of Justinian §50.16.189.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:50.16.189.pr

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