Justinian I · The Digest of Justinian §9.4.8.pr

Joint Liability and Noxal Surrender for a Common Slave

Passage 1589 of 9271 · Latin

Summary

This section discusses the joint and several liability of co-owners when a common slave commits a wrong, explaining the requirements for full surrender, recourse actions, and the legal implications of surrendering a share.

[IDEM libro trigensimo septimo ad edictum. ] §9.4.8.prSi seruus communis furtum fecerit, quiuis ex dominis in solidum noxali iudicio tenetur: eoque iure utimur.

[THE SAME, Book 37 on the Edict] If a common slave commits a theft, any of the owners is held liable in full in a noxal action; and this is the rule we apply.

sed non alias poterit is qui conuentus est euadere litis aestimationem, nisi in solidum noxae dederit seruum, nec ferendus est, si partem dedere fuerit paratus.

But the one who has been sued cannot escape the assessment of the suit in any other way than by surrendering the slave in full as a noxal surrender, nor is he to be tolerated if he is prepared to surrender only his share.

plane si propter hoc, quod socii dedere parati non fuerint, in solidum fuerit condemnatus, communi diuidundo uel familiae erciscundae iudicio aduersus eos experietur.

Clearly, if he has been condemned in full because his partners were not prepared to make the surrender, he shall take proceedings against them by the action for dividing common property or for dividing an inheritance.

ante noxale sane iudicium acceptum poterit sua parte cedendo securitatem consequi, ne necesse habeat suscipere iudicium: quamquam quis possit dicere euenire, ut, dum pars eiue data amittat actionem: dominus enim pro parte factus non potest cum socio noxali experiri.

To be sure, before the noxal action is accepted, he can secure his release by surrendering his own share, so that he does not have to undertake the trial; although someone might say that it happens that, when the share is given to the plaintiff, he loses his action: for one who has become an owner in part cannot proceed in a noxal action against his partner.

fortassis nec communi diuidundo agere possit eius maleficii nomine, quod ante communionem admissum est: quod si non potest, euidenti iniuria adficietur.

Perhaps he cannot even bring an action for dividing common property on account of a wrongdoing committed before the co-ownership began; and if he cannot, he will suffer an obvious injustice.

sed melius est dicere, competere ei communi diuidundo iudicium.

But it is better to say that the action for dividing common property is available to him.

Notes

§9.4.8.prin solidum — A technical legal expression meaning "in full" or "for the whole amount." It indicates that when a common slave commits a wrong, any of the co-owners is individually liable to the victim for the entire amount of damages (or the surrender of the whole slave).
§9.4.8.prante noxale sane iudicium acceptum — A construction where the preposition `ante` governs the accusative noun `iudicium` and the perfect passive participle `acceptum` (the so-called "ab urbe condita" construction), meaning "before the noxal action is accepted (reaches joinder of issue)." `iudicium accipere` is a legal term referring to agreeing to the joinder of issue (litis contestatio).
§9.4.8.preuenire, ut, dum pars eiue data amittat actionem — `euenire` ("to happen") functions as an impersonal verb taking an `ut`-clause with the subjunctive `amittat`. Although this passage is highly corrupted in manuscripts, it describes the legal consequence: by the defendant transferring his share (`pars`) to the plaintiff (`ei`), the plaintiff becomes a co-owner (`socius`), and consequently, the plaintiff's action is lost (`amittat actionem`).

Cite this passage

Justinian I, The Digest of Justinian §9.4.8.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:9.4.8.pr

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