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Justinian I · The Digest of Justinian §9.4.38.pr-9.4.38.3

Sale or Abandonment of Offending Slaves and Theft Actions

Passage 1619 of 9271 · Latin

Summary

This passage clarifies the liability of a seller who alienates a noxious slave after joinder of issue, the rule that abandoning a slave bars theft actions, and the grounds for mutual actions when a slave's sale proceeds are seized or when a slave embezzles a debt payment.

[ULPIANUS libro trigensimo septimo ad edictum. ] §9.4.38.prquemadmodum si alii uendidisset: parui enim refert, cui uendiderit, aduersario an alii: suaque culpa litis aestimationem sublaturum, qui uendendo noxae deditionem sibi ademit.
[ULPIANUS, On the Edict, Book XXXVII.]...just as if he had sold him to someone else; for it matters little to whom he sold him, whether to his adversary or to another; and he who, by selling him, deprived himself of the power of surrendering the slave as noxa, must bear the assessment of the damages through his own fault.
§9.4.38.1Iulianus autem libro uicensimo secundo digestorum scribit, si seruum pro derelicto habeam, qui tibi furtum fecerat, liberari me, quia statim meus esse desinit, ne eius nomine, qui sine domino sit, furti sit actio.
Moreover, Julian writes in the twenty-second book of the Digests that if I abandon a slave who had committed a theft against you, I am released from liability, because he immediately ceases to be mine, lest there should be an action for theft on account of one who has no master.
§9.4.38.2Si seruus meus rem tuam subtraxerit et uendiderit tuque nummos quos ex pretio habebat ei excusseris, locus erit furti actioni ultro citroque: nam et tu aduersus me furti ages noxali serui nomine et ego aduersus te nummorum nomine.
If my slave steals your property and sells it, and you force from him the coins which he had from the price, there will be ground for an action for theft on both sides; for you will bring an action for theft against me on account of the slave's wrong, and I against you on account of the coins.
§9.4.38.3Sed et si seruo creditoris mei soluerim nummos, ut is eos domino suo det, aeque locus erit furti actioni, si is nummos acceptos interceperit.
But also, if I pay coins to a slave of my creditor in order that he may give them to his master, and he embezzles the coins after receiving them, there will likewise be ground for an action for theft.

Notes

  1. §9.4.38.prlitis aestimationem sublaturum — sublaturum is the future active participle of tollere (meaning here to bear or endure), forming an infinitive with esse understood. Its subject is the omitted antecedent eum of the relative clause qui uendendo... ('he who by selling...'). It means that the seller, having lost the option of noxal surrender due to the sale, must bear the assessed damages as a consequence of his own fault.
  2. §9.4.38.1ne eius nomine, qui sine domino sit, furti sit actio — ne... sit is a negative purpose clause. eius in eius nomine is modified by the subjunctive relative clause qui sine domino sit ('who is without a master'). In Roman law, liability for a slave's delict attaches to the current owner; thus, if a slave is abandoned and has no owner, no noxal action can be brought on his account.
  3. §9.4.38.2locus erit furti actioni ultro citroque — ultro citroque ('mutually' or 'on both sides') indicates the co-existence of two distinct actions: a noxal action for theft (actio furti noxalis) by the victim against the slave's owner, and a direct action for theft (actio furti) by the owner against the victim who forcefully took the sale proceeds from the slave.

Cite this passage

Justinian I, The Digest of Justinian §9.4.38.pr-9.4.38.3. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:9.4.38.pr-9.4.38.3

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