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Justinian I · The Digest of Justinian §50.17.78.pr

Assessment of Loss Prevented from Being Gained in Fraud

Passage 9138 of 9271 · Latin

Summary

This passage states the general principle that in disputes involving fraud or damage, the court must consider what the plaintiff was prevented from obtaining due to the opponent's conduct, rather than what the plaintiff simply lacks.

[IDEM libro trigensimo primo quaestionum. ] §50.17.78.prGeneraliter cum de fraude disputatur, non quid non habeat actor, sed quid per aduersarium habere non potuerit, considerandum est.
[THE SAME, from his thirty-first book of Questions.] Generally, when there is a dispute concerning fraud, we must consider not what the plaintiff does not have, but what he could not have had because of his opponent.

Notes

  1. 50.17.78.prper aduersarium — The preposition `per` with the accusative typically denotes means or agency, but here it expresses the cause of hindrance or prevention, meaning "because of the opponent" or "owing to the opponent's obstruction."
  2. 50.17.78.prquid non habeat... quid... potuerit — These clauses form indirect questions acting as the subject of the gerundive construction `considerandum est` (it must be considered), which explains the use of the subjunctive present `habeat` and perfect `potuerit`.

Cite this passage

Justinian I, The Digest of Justinian §50.17.78.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:50.17.78.pr

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