Corpus iurisprudentiae Romanae

Repertorium zu den Quellen des römischen Rechts

Digesta Iustiniani Augusti

Recognovit Mommsen (1870) et retractavit Krüger (1928)
Convertit in Anglica lingua Scott (1932)
Dig. II7,
Ne quis eum qui in ius vocabitur vi eximat
Liber secundus
VII.

Ne quis eum qui in ius vocabitur vi eximat

(No One Can Forcibly Remove a Person Who Has Been Summoned to Court.)

1Ul­pia­nus li­bro quin­to ad edic­tum. Hoc edic­tum prae­tor pro­pos­uit, ut me­tu poe­nae com­pes­ce­ret eos, qui in ius vo­ca­tos vi eri­piunt. 1De­ni­que Pom­po­nius scri­bit ser­vi quo­que no­mi­ne noxa­le iu­di­cium red­den­dum, ni­si scien­te do­mi­no id fe­cit: tunc enim si­ne no­xae de­di­tio­ne iu­di­cium sus­ci­piet. 2Ofi­lius pu­tat lo­cum hoc edic­to non es­se, si per­so­na, quae in ius vo­ca­ri non po­tuit, ex­emp­ta est, vel­uti pa­rens et pa­tro­nus ce­te­rae­que per­so­nae: quae sen­ten­tia mi­hi vi­de­tur ve­rior. et sa­ne si de­li­quit qui vo­cat, non de­li­quit qui exe­mit.

1Ulpianus, On the Edict, Book V. The Prætor published this Edict to restrain by the fear of punishment those who rescue by violence persons who have been summoned to court. 1And then Pomponius has stated that where a slave commits an offence, a noxal action should be granted unless he committed it with the knowledge of his master; for in this instance the master must defend the action without being permitted to surrender the slave. 2Ofilius is of the opinion that the provisions of the Edict do not apply where the person summoned to court is exempt; as for example, a father, a patron, and the other persons above enumerated. This opinion seems to me to be correct; for, indeed, if he who summoned him was guilty of an illegal act, he who liberated him was not.

2Pau­lus li­bro quar­to ad edic­tum. Nam cum uter­que con­tra edic­tum fa­ciat, et li­ber­tus qui pa­tro­num vo­cat, et is qui pa­tro­num vi ex­imat: de­te­rio­re ta­men lo­co li­ber­tus est, qui in si­mi­li de­lic­to pe­ti­to­ris par­tes sus­ti­net. 1Ea­dem ae­qui­tas est in eo, qui alio quam quo de­bue­rat in ius vo­ca­ba­tur: sed et for­tius di­cen­dum est non vi­de­ri vi ex­imi eum, cui sit ius ibi non con­ve­ni­ri.

2Paulus, On the Edict, Book IV. For although both parties, the freedman who summoned his patron, and he who liberated him by force, violated the Edict, the condition of the freedman is made worse; because, in an action of this kind he takes the part of plaintiff. 1The same equitable reason applies to a party who is summoned to a place other than the one to which he should have been summoned. It can, however, be stated more positively that he who had the right to refuse to appear is not held to have been liberated by force.

3Ul­pia­nus li­bro quin­to ad edic­tum. Quod si ser­vum quis exe­mit in ius vo­ca­tum, Pe­dius pu­tat ces­sa­re edic­tum, quon­iam non fuit per­so­na, quae in ius vo­ca­ri po­tuit. quid er­go? ad ex­hi­ben­dum erit agen­dum. 1Si quis ad pe­da­neum iu­di­cem vo­ca­tum quem ex­imat, poe­na eius edic­ti ces­sa­bit. 2Quod prae­tor prae­ce­pit ‘vi ex­imat’: vi an et do­lo ma­lo? suf­fi­cit vi, quam­vis do­lus ma­lus ces­set.

3Ulpianus, On the Edict, Book V. When anyone rescues a slave who has been summoned to court, Pedius thinks that the Edict is not applicable; since the slave is not a person who can be summoned. What then shall be done? Proceedings must be instituted to produce him. 1Where anyone liberates a party summoned before a judge of inferior jurisdiction the penalty of the Edict shall not be imposed. 2Where the Prætor states “He released him by force”; does this mean that the act was committed merely with violence, or with malice also? It is sufficient if the act be perpetrated with violence, even though malice does not exist.

4Pau­lus li­bro quar­to ad edic­tum. Sed ex­imen­di ver­bum ge­ne­ra­le est, ut Pom­po­nius ait. eri­pe­re enim est de ma­ni­bus au­fer­re per rap­tum: ex­ime­re quo­quo mo­do au­fer­re. ut pu­ta si quis non ra­pue­rit quem, sed mo­ram fe­ce­rit quo mi­nus in ius veniret, ut ac­tio­nis dies ex­iret vel res tem­po­re amit­te­re­tur: vi­de­bi­tur exe­mis­se, quam­vis cor­pus non exe­me­rit. sed et si eo lo­ci re­ti­nue­rit, non ab­du­xit, his ver­bis te­ne­tur. 1Item si quis eum, qui per ca­lum­niam vo­ca­ba­tur, exe­me­rit: con­stat eum hoc edic­to te­ne­ri. 2Prae­tor ait ‘ne­ve fa­ciat do­lo ma­lo, quo ma­gis ex­ime­re­tur’: nam pot­est si­ne do­lo ma­lo id fie­ri, vel­uti cum ius­ta cau­sa est ex­emp­tio­nis.

4Paulus, On the Edict, Book IV. The term “liberate” is one of general application, as Pomponius says for to “carry off” is to remove by seizure with the hands; but to “liberate” can be done in any way whatsoever; as for example, if anyone does not remove a party by force, but causes delay to prevent him appearing in court, so that the day set for bringing the action goes by, or the property in question is lost by lapse of time, he is held to have liberated him; even though he did not do so bodily. But, if he retained him in some place, and did not abduct him, he is liable under the provisions of the Edict. 1Again, if anyone liberates a party who has been summoned for the purpose of annoyance, he is considered to be liable under the Edict. 2The Prætor says: “He must not act maliciously to enable him to be released”; for this can be done without malice when there is good cause for liberation.

5Ul­pia­nus li­bro quin­to ad edic­tum. Si per alium quis exe­me­rit, hac clau­su­la te­ne­tur, si­ve prae­sens fuit si­ve ab­sens. 1In eum au­tem, qui vi exe­mit, in fac­tum iu­di­cium da­tur: quo non id con­ti­ne­tur quod in ve­ri­ta­te est, sed quan­ti ea res est ab ac­to­re aes­ti­ma­ta, de qua con­tro­ver­sia est. hoc enim ad­di­tum est, ut ap­pa­reat et­iam si ca­lum­nia­tor quis sit, ta­men hanc poe­nam eum per­se­qui. 2Do­ce­re au­tem de­bet quis per hanc ex­emp­tio­nem fac­tum quo mi­nus in ius pro­du­ce­re­tur. ce­te­rum si ni­hi­lo mi­nus pro­duc­tus est, ces­sat poe­na: quon­iam ver­ba cum ef­fec­tu sunt ac­ci­pien­da. 3Hoc iu­di­cium in fac­tum est: et si plu­res de­li­que­rint in sin­gu­los da­bi­tur, et ni­hi­lo mi­nus ma­net qui ex­emp­tus est ob­li­ga­tus: 4He­redi­bus au­tem ita da­bi­tur, si eo­rum in­ter­sit: ne­que au­tem in he­redem ne­que post an­num da­bi­tur.

5Ulpianus, On the Edict, Book V. Where anyone has effected a rescue through the agency of another, he is liable under this clause, whether he was present or absent. 1An action is granted against anyone who has liberated a party by force, and the amount of damages is not based upon what was actually lost, but the value of the property in dispute is fixed by the plaintiff; and this provision was added, so that it might be apparent that if he brought action without proper grounds, he could still recover this penalty. 2The plaintiff must also show that the rescue which was made prevented the defendant from appearing in court, but if he was nevertheless produced, the penalty cannot be imposed, since the words are only applicable where some act was performed. 3The action is in factum, and is of such a character that where several have committed a wrong it can be brought against each one of them; and the party who was liberated will still remain liable. 4The right of action is also granted to heirs if they have any interest in making use of it; it is, however, not granted against an heir, or after the expiration of a year.

6Idem li­bro tri­gen­si­mo quin­to ad edic­tum. Is qui de­bi­to­rem vi exe­mit, si sol­ve­rit, reum non li­be­rat, quia poe­nam suam sol­vit.

6The Same, On the Edict, Book XXXV. If he who has released a debtor by force makes payment, he does not exempt the latter from liability, because he pays the penalty of his own act.