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Justinian I · The Digest of Justinian §50.17.154.pr

Superiority of the Possessor in Mutual Fault

Passage 9214 of 9271 · Latin

Summary

The text explains the rule that when the fault of both parties is equal, the possessor's position is favored over the claimant's, using the refusal of a replication in the plea of malice as an example.

[ULPIANUS libro septuagensimo ad edictum. ] §50.17.154.prCum par delictum est duorum, semper oneratur petitor et melior habetur possessoris causa.
[ULPIANUS, in the seventieth book on the edict.] When the fault of two parties is equal, the claimant is always burdened and the position of the possessor is held to be better.
sicut fit, cum de dolo excipitur petitoris: neque enim datur talis replicatio petitori 'aut si rei quoque in ea re dolo 'actum sit'. illi debet permitti poenam petere, qui in ipsam non incidit.
This is as happens when an objection of the claimant's malice is pleaded: for such a replication is not granted to the claimant, "or if action was also taken with malice by the defendant in that matter." It ought to be permitted to seek a penalty to him who has not himself fallen into it.

Notes

  1. §50.17.154.prrei — The genitive (or dative) singular of reus (the defendant). Here, combined with the impersonal passive dolo actum sit ("action was taken with malice"), it expresses the actor: "if action was taken with malice by the defendant also."
  2. §50.17.154.pripsam — A feminine accusative singular demonstrative pronoun whose immediate antecedent is poenam (penalty, punishment). Contextually, however, it refers not merely to the penalty itself, but to the wrongful conduct or fault (such as implied feminine nouns like culpa or fraus) that would incur such a penalty.
  3. §50.17.154.prde dolo excipitur — excipitur is the third-person singular present passive of excipere (to plead an exception), used impersonally. It literally means "when it is pleaded concerning malice," referring to the raising of the defense of malice (exceptio doli).

Cite this passage

Justinian I, The Digest of Justinian §50.17.154.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:50.17.154.pr

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