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Justinian I · The Digest of Justinian §6.1.36.pr-6.1.36.1

Verification of Possession and Possessor Negligence for Loss

Passage 1107 of 9271 · Latin

Summary

Discusses the necessity for a plaintiff in a proprietary action to verify the defendant's possession beforehand, and the liability of a possessor for loss of the claimed property due to negligence.

[GAIUS libro septimo ad edictum prouinciale. ] §6.1.36.prQui petitorio iudicio utitur, ne frustra experiatur, requirere debet, an is, cum quo instituat actionem, possessor sit uel dolo desiit possidere.
[GAIUS, in the seventh book on the Provincial Edict.] He who brings a proprietary action, in order not to sue in vain, ought to inquire whether the person against whom he is to bring the action is the possessor, or has ceased to possess by dolus.
§6.1.36.1Qui in rem conuenitur, etiam culpae nomine condemnatur.
He who is sued in an action in rem is also condemned on the ground of negligence.
culpae autem reus est possessor, qui per insidiosa loca seruum misit, si is periit, et qui seruum a se petitum in harena esse concessit, et is mortuus sit: sed et qui fugitiuum a se petitum non custodit, si is fugit, et qui nauem a se petitam aduerso tempore nauigatum misit, si ea naufragio perempta est.
Moreover, a possessor is liable for negligence: such as one who has sent a slave through dangerous places, if the slave has perished; and one who has permitted a slave claimed from him to be in the arena, and the slave has died there; but also one who has not guarded a runaway slave claimed from him, if the slave has escaped; and one who has sent a ship claimed from him to sail in unfavorable weather, if it has been destroyed by shipwreck.

Notes

  1. §6.1.36.pran is, cum quo instituat actionem, possessor sit uel dolo desiit possidere — Under the conjunction `an` introducing an indirect question, the first predicate `possessor sit` is regularly in the subjunctive, whereas the second predicate `desiit` is in the indicative perfect. This can be explained either as a relative clause modifying `is` (with `qui` omitted), or as a shift to the indicative mood in an indirect question, which is sometimes observed in colloquial or later Latin.
  2. §6.1.36.1concessit, et is mortuus sit — While the other examples of negligence in this section use a conditional clause with `si` + perfect indicative (e.g., `si is periit`, `si is fugit`), here the clause is connected by `et` without `si`, and the verb is in the perfect subjunctive `mortuus sit`. This can be understood as a subjunctive of potentiality or result ("and he should have died"), or as a conditional clause with the omission of `si`.
  3. §6.1.36.1nauigatum — This is the accusative of the supine (former supine) of the verb `nauigo` (to sail). It is used with the verb of motion or sending `misit` to express purpose ("to sail" or "for the purpose of sailing").

Cite this passage

Justinian I, The Digest of Justinian §6.1.36.pr-6.1.36.1. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:6.1.36.pr-6.1.36.1

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