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Justinian I · The Digest of Justinian §50.17.41.pr-50.17.41.1

Equality of Parties and Favoring Recovery Over Gain

Passage 9101 of 9271 · Latin

Summary

This passage states the principle of equality between plaintiff and defendant in legal actions, and establishes that in unclear cases, favoring the recovery of property is preferred over securing a windfall.

[ULPIANUS libro uicesimo sexto ad edictum. ] §50.17.41.prNon debet actori licere, quod reo non permittitur.
[ULPIANUS, in his twenty-sixth book on the Edict.] What is not permitted to the defendant ought not to be allowed to the plaintiff.
§50.17.41.1In re obscura melius est fauere repetitioni quam aduenticio lucro.
In an obscure matter, it is better to favor recovery than adventitious gain.

Notes

  1. §50.17.41.prquod reo non permittitur — The relative clause `quod reo non permittitur` functions as the subject of the main verbal phrase `non debet... licere`, with the antecedent (such as `id`) being omitted.
  2. §50.17.41.1repetitioni quam aduenticio lucro — Since the verb `fauere` (to favor) governs the dative case, both `repetitioni` (recovery/restitution) and `aduenticio lucro` (adventitious/unexpected gain) are in the dative.

Cite this passage

Justinian I, The Digest of Justinian §50.17.41.pr-50.17.41.1. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:50.17.41.pr-50.17.41.1

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