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Justinian I · The Digest of Justinian §9.4.42.pr-9.4.42.2

Suspension, Acquittal, and Succession in Noxal Actions

Passage 1623 of 9271 · Latin

Summary

Ulpian explains the suspension of a noxal action when the alleged slave claims freedom, the acquittal of a defendant who unknowingly accepts a noxal action for a deceased slave, and the rule that noxal actions are brought against heirs or new owners based on right of ownership rather than succession status.

[ULPIANUS libro trigensimo septimo ad edictum. ] §9.4.42.prSi ad libertatem proclamauerit is cuius nomine noxale iudicium susceptum est, sustineri debet id iudicium, quoad de statu eius iudicetur: et sic, si quidem seruus fuerit pronuntiatus, noxale iudicium exercebitur, si liber, inutile uidebitur.
[ULPIAN, Book XXXVII on the Edict.] If the person on whose behalf a noxal action has been undertaken should claim his freedom, that action must be stayed until judgment is rendered regarding his status; and thus, if indeed he is pronounced to be a slave, the noxal action will be prosecuted, but if he is declared free, it will be considered of no effect.
§9.4.42.1Si quis pro seruo mortuo ignorans eum decessisse noxale iudicium acceperit, absolui debet, quia desit uerum esse propter eum dare oportere.
If anyone, being ignorant that a slave has died, accepts a noxal action on behalf of a deceased slave, he ought to be acquitted, because it ceases to be true that there is an obligation to surrender (or pay) on account of him.
§9.4.42.2Hae actiones perpetuae sunt locumque habebunt tamdiu, quamdiu serui dedendi facultatem habemus: nec tantum nobis, uerum etiam successoribus nostris competent, item aduersus successores, sed non quasi in successores, sed iure dominii.
These actions are perpetual and will be available so long as we have the power of surrendering the slave; and they will belong not only to us, but also to our successors, and likewise against successors, yet not as it were against them as successors, but by right of ownership.
proinde et si seruus ad alium peruenisse proponatur, iure dominii noxali iudicio nouus dominus conuenietur.
Accordingly, even if it is asserted that the slave has passed to another person, the new owner will be sued in a noxal action by right of ownership.

Notes

  1. §9.4.42.pris cuius nomine noxale iudicium susceptum est — The demonstrative pronoun `is`, which is the antecedent of the relative clause, is the subject of the conditional clause `Si... proclamauerit`. While a noxal action is undertaken (suscipere) by the master, if the person "in whose name" the action is brought claims to be free (proclamare ad libertatem), the noxal action must be suspended (sustineri) until the status is determined.
  2. §9.4.42.1desit uerum esse propter eum dare oportere — This structure is in the causal clause introduced by `quia`. The subject of `desit` (present subjunctive of deesse) is the infinitive clause `uerum esse` (to be true), which in turn governs the accusative and infinitive construction `propter eum dare oportere` (that one ought to surrender/pay on account of him). If the slave has died, the physical basis for the surrender of the noxious object (noxae deditio) is lost, meaning that the underlying obligation itself ceases to exist (deesse).
  3. §9.4.42.2non quasi in successores, sed iure dominii — This expression qualifies and contrasts the manner in which the action lies against the successors of the defendant. A noxal action is brought against them not in their capacity as heirs inheriting a personal debt of the deceased (quasi in successores), but in their capacity as the current owners of the slave (iure dominii). This syntax reflects the principle that "the liability follows the person of the wrongdoer" (noxa caput sequitur).

Cite this passage

Justinian I, The Digest of Justinian §9.4.42.pr-9.4.42.2. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:9.4.42.pr-9.4.42.2

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