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142 BOOK FORTY-FOURIVARIOUS PERIODS OF PRAESCRIPTIONES that the former's right was also in issue. But if a possessor who has been absolved were to lose his possession and claim the said property from the person who did not win previously, the defense would not avail against him; for it would seem that in that action against him nothing had been decided as to his right. Moreover, when the action on pledge was brought against the first creditor, it can be that the right of the possessor was not in issue, because in a pledge it surely does not follow that what he will here prove was pledged to him was not pledged to another, as in a question of ownership where what is mine is not that of another. And it is more correct to say that the defense will not avail, since the right of the possessor was not in issue, but solely the obligation of pledge. Moreover, in the case put to me I am more influenced by the question whether the right of pledge was extinguished when the ownership was obtained; for the pledge cannot continue when the creditor was made owner. However, the action on pledge is competent; for it is true that the property was given in pledge and satisfaction has not occurred, and, therefore, I am of the opinion that the defense of res judicata is not available. 31 PAUL,Replies, book 3: Paul replied to one who had brought a real action and did not succeed, that the defense of res judicata does not bar him if he subsequently sues by condictio. THE VARIOUS PERIODS OF PRAESCRIPTIONES AND THE ACCESSION OF POSSESSION 1 ULPIAN,Edict, book 74: Because the question of dies utiles is frequent, let us see what it means to have a power to sue. And, indeed, the principal requirement is that there be a power to bring an action. And it is not sufficient to have a power to go to court against a defendant or to have someone fit to defend himself, unless the plaintiff too is not impeded by any appropriate reason from suing. Accordingly, whether he be in the hands of the enemy or absent on affairs of the state or in prison, or detained in some place or region by a storm, so that he can neither bring the action nor instruct someone to do so, he has no power to sue. Clearly, a person who is prevented by illness from being able to give instructions is in the position of having a power to sue. It surely escapes no one's mind that a person who did not have a praetor available does not have a power to sue; consequently, only the days on which the praetor exercised jurisdiction are counted. 2 MARCELLUS, Digest, book 6: The question arises whether or not in the dates appointed for judicial proceedings intercalary days ought to be for the benefit of the person against whom judgment has been given. Likewise, the date on which a suit is terminated must without doubt be computed in such a manner that the time of the suit is regarded as increased by an intercalary day, for instance, if it is a question concerning usucapion which is usually completed after a specified period, or concerning actions which come to an end after a fixed term, such as the aedilitian and most other actions. And if someone sold land on condition that if the price was not paid within thirty days the land shall become unbought, an intercalary day will be for the benefit of the purchaser. My view is to the contrary. 3 MODESTINUS, Distinctions, book 6: It is clear that prescription of a long period is of application as much to land as to slaves. 4 JAVOLENUS, Letters, book 7: If a slave belonging to an inheritance or to one who is in the power of the enemy accepted security, the date of the security will begin to run at once; for we must inquire whether there was a power to proceed against the person who was bound and not whether he who brought the matter to an obligation could himself have sued; otherwise, it would be most inequitable that the obligations of debtors by whom nothing was done to impede action being taken against them should be prolonged because of the position of the plaintiffs. 5 ULPIAN,Disputations, book 3: It must be examined whether an impediment on 142...


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