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Justinian I · The Digest of Justinian §6.1.38.pr

Judicial Discretion on Expenses and Removal for Good-Faith Building

Passage 1109 of 9271 · Latin

Summary

It presents the criteria for a judge to adjust claims according to the parties' financial status and intent when land is evicted after a person unknowingly built or planted on another's land, addressing expenses, material removal, and deductions in condemnation.

[CELSUS libro tertio digestorum. ] §6.1.38.prIn fundo alieno, quem imprudens emeras, aedificasti aut conseruisti, deinde euincitur: bonus iudex uarie ex personis causisque constituet.
[CELSUS, in the third book of his Digest.] You have built or planted on another's land, which you had bought unknowingly, and then it is evicted: a good judge will decide variously according to the persons and the cases.
finge et dominum eadem facturum fuisse: reddat impensam, ut fundum recipiat, usque eo dumtaxat, quo pretiosior factus est, et si plus pretio fundi accessit, solum quod impensum est.
Imagine that the owner too would have done the same: let him restore the expense, so that he may receive the land, only up to the amount by which it has been made more valuable; and if the increase in the value of the land is greater, only what was expended.
finge pauperem, qui si reddere id cogatur, laribus sepulchris auitis carendum habeat: sufficit tibi permittti tollere ex his rebus quae possis, dum ita ne deterior sit fundus, quam si initio non foret aedificatum.
Imagine a poor man, who, if he were compelled to restore it, would have to do without his ancestral hearths and tombs: it is sufficient for you to be permitted to take away of these things what you can, provided that the land does not become worse than if there had been no building at the beginning.
constituimus uero, ut, si paratus est dominus tantum dare, quantum habiturus est possessor his rebus ablatis, fiat ei potestas: neque malitiis indulgendum est, si tectorium puta, quod induxeris, picturasque corradere uelis nihil laturus nisi ut officias.
But we lay down that, if the owner is ready to give as much as the possessor would have after these things were taken away, the opportunity should be granted to him; nor should malice be indulged, if, for example, you wish to scrape off the plastering you have applied and the pictures, when you will carry away nothing except to cause annoyance.
finge eam personam esse domini, quae receptum fundum mox uenditura sit: nisi reddit, quantum prima parte reddi oportere diximus, eo deducto tu condemnandus es.
Imagine the owner is such a person who is about to sell the recovered land soon: unless he restores as much as we said ought to be restored in the first part, you are to be condemned only after that amount is deducted.

Notes

  1. §6.1.38.prfinge et dominum eadem facturum fuisse — The imperative 'finge' governs the accusative-with-infinitive clause 'dominum eadem facturum fuisse'. 'facturum fuisse' represents the past contrary-to-fact apodosis in indirect discourse.
  2. §6.1.38.prlaribus sepulchris auitis carendum habeat — 'carendum habeat' is an idiom expressing necessity, equivalent to 'carendum sit'. Since 'careo' governs the ablative case, 'laribus' and 'sepulchris auitis' are in the ablative.
  3. §6.1.38.prdum ita ne deterior sit fundus, quam si initio non foret aedificatum — 'dum ... ne' introduces a restrictive proviso (provided that ... not) with the subjunctive 'sit'. 'foret' in 'non foret aedificatum' is equivalent to 'esset', representing an impersonal pluperfect subjunctive of a contrary-to-fact condition.
  4. §6.1.38.preo deducto tu condemnandus es — 'eo deducto' is an ablative absolute, where 'eo' refers to the amount to be restored (quantum...) mentioned previously. 'condemnandus es' is a gerundive of obligation, meaning 'you are to be condemned [to pay]', implying a judicial condemnation with the deduction of the useful expenses.

Cite this passage

Justinian I, The Digest of Justinian §6.1.38.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:6.1.38.pr

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