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Justinian I · The Digest of Justinian §6.1.62.pr-6.1.62.1

Claim for a Ship and the Standard for Assessing Fruits

Passage 1133 of 9271 · Latin

Summary

The passage discusses the assessment of fruits (freight) when a ship is claimed from a bad-faith possessor, contrasting it with deposited money, and establishes the general rule that fruit assessment is based on what the claimant could have gathered.

[PAPINIANUS libro sexto quaestionum. ] §6.1.62.prSi nauis a malae fidei possessore petatur, et fructus aestimandi sunt, ut in taberna et area quae locari solent.
[PAPINIAN in the sixth book of Questions.] If a ship is claimed from a possessor in bad faith, its fruits must also be assessed, as is the case with a tavern or a plot of land which are customarily let.
quod non est ei contrarium, quod de pecunia deposita, quam heres non attingit, usuras praestare non cogitur: nam etsi maxime uectura sicut usura non natura peruenit, sed iure percipitur, tamen ideo uectura desiderari potest, quoniam periculum nauis possessor petitori praestare non debet, cum pecunia periculo dantis faeneretur.
This is not contrary to the fact that one is not compelled to pay interest on deposited money which the heir does not touch; for even though freight, like interest, does not arise naturally but is perceived by law, nevertheless freight can be demanded for this reason: that the possessor does not have to guarantee the risk of the ship to the claimant, whereas money is lent at interest at the risk of the lender.
§6.1.62.1Generaliter autem cum de fructibus aestimandis quaeritur, constat animaduerti debere, non an malae fidei possessor fruitus sit, sed an petitor frui potuerit, si ei possidere licuisset.
Generally, however, when there is a question about assessing fruits, it is established that regard must be had, not to whether the possessor in bad faith gathered the fruits, but to whether the claimant could have gathered them if he had been allowed to possess.
quam sententiam Iulianus quoque probat.
Julian also approves of this opinion.

Notes

  1. §6.1.62.prquod non est — The first `quod` is a demonstrative pronoun in the nominative referring to the preceding statement (that the freight of the ship must be assessed as fruits). The second `quod` introduces a noun clause in apposition to the first `quod` ("the fact that..."), resulting in the structure "the fact that... is not contrary to it (the former principle)." `ei` is a dative pronoun referring to the former.
  2. §6.1.62.pretsi maxime — Expresses a concession, meaning "even though it is highly true that..." Here, it concedes that "freight, like interest, is acquired by law rather than arising naturally (and thus differs in nature from natural fruits)," which then connects to `tamen` ("nevertheless") in the main clause.
  3. §6.1.62.1an petitor frui potuerit — The indirect question clauses `an...` are coordinated and serve as the object (or topic of attention) of the passive infinitive `animaduerti` in the subject clause of `constat` ("it is established that regard must be had to..."). This indicates that the standard for assessing the return of fruits is based not on the profit actually obtained by the defendant (possessor), but on the profit that the claimant (petitor) could have obtained.

Cite this passage

Justinian I, The Digest of Justinian §6.1.62.pr-6.1.62.1. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:6.1.62.pr-6.1.62.1

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