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. XLIV6,
De litigiosis
Liber quadragesimus quartus
VI.

De litigiosis

(Concerning Property in Litigation.)

1Ulpianus libro septuagensimo sexto ad edictum. Litigiosam rem non facit denuntiatio, quae impediendae venditionis causa fit. 1Si inter Primum et Secundum sit lis contestata et ego a Tertio emero, qui nullam controversiam patiebatur, videamus, an exceptioni locus sit. et putem subveniendum mihi, quia is, qui mihi vendidit, nullam litem habuit et quod fieri potest, ut duo in necem eius litem inter se iungant, qui cum ipso litigare non poterant. si tamen cum procuratore tutore curatoreve alicuius iudicium acceptum sit, consequens erit dicere, quasi cum ipso litigetur, ita eum ad exceptionem pertinere.

1Ulpianus, On the Edict, Book LXXVI. When notice is served for the purpose of preventing a sale, this does not render the property in question subject to litigation. 1Where the title to property is in controversy between two persons, and I purchase it from a third, whose claim is not liable to dispute, let us see whether there will be ground for an exception. I think that I will be entitled to relief, because he who sold me the property was not engaged in any lawsuit, and it might happen that two others had agreed with one another to dispute the title to the property for the purpose of injuring him, as they could not involve him in litigation. If, however, proceedings have been instituted against the agent, guardian, or curator of anyone, it can be said that they have been instituted against the principal, and therefore that he will be entitled to an exception.

2Idem libro sexto fideicommissorum. Si servus cum emerit scit, ignoravit autem dominus, vel contra, videndum est, cuius potius spectanda sit scientia. et magis est, ut scientia inspicienda sit eius qui comparavit, non eius, cui adquiretur, et ideo poena litigiosi competit, sic tamen, si non mandatu domini emit: nam si mandatu, etiamsi scit servus, dominus autem ignoravit, scientia non nocet: et ita Iulianus in re litigiosa scribit.

2The Same, Trusts, Book VI. If, when a slave purchased property, he knew that it was in litigation, but his master was not aware of this, or vice versa, let us see whose knowledge of the fact should be taken into account. The better opinion is that the knowledge of him who purchased the property, and not that of him by whom it was acquired, should be considered. Hence, the penalty attaching to the purchase of the above-mentioned property, which is in litigation, can be collected, provided the slave did not buy it under the direction of his master, for if he did so, even if he knew that the title was in dispute, and his master was ignorant of the fact, the knowledge of the slave will not prejudice him. This was also stated by Julianus with reference to property in litigation.

3Gaius libro sexto ad legem duodecim tabularum. Rem de qua controversia est prohibemur in sacrum dedicare: alioquin dupli poenam patimur, nec immerito, ne liceat eo modo duriorem adversarii condicionem facere. sed duplum utrum fisco an adversario praestandum sit, nihil exprimitur: fortassis autem magis adversario, ut id veluti solacium habeat pro eo, quod potentiori adversario traditus est.

3Gaius, On the Law of the Twelve Tables, Book VI. We forbid property which is in litigation to be dedicated to sacred purposes, otherwise a double penalty will be incurred, and this is not unreasonable, as in this way the condition of an adversary is prevented from becoming more oppressive. It is, however, not stated whether the double penalty should be paid to the Treasury, or to the adverse party. Perhaps it should be paid to the latter, in order to console him for being delivered over to a more powerful opponent.