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COMMU´NI DIVIDUNDO AC´TIO

COMMU´NI DIVIDUNDO AC´TIO is one of the so-called judicia divisoria, or partition actions (the others being those known as familiae erciscundae and finium regundorum): they are said by Justinian (Inst. 4.6, 20), “mixtam causam obtinere, tam in rem quam in personam,” to be partly real, partly personal. The explanation of this lies in the structure of their formula [ACTIO], which contained two intentiones: one framed in rem, and followed by an adjudicatio or clause empowering the judge to award the property in severalty to the joint owners (Gaius, 4.41); the other framed in personam, and followed by a condemnatio, by which the judge was enabled to charge any one of the joint owners who got more than his fair share of the res communis with a money payment in favour of the rest. These clauses were repeated in the formula for each of the joint owners, whence Ulpian calls these actions mixtae in another sense, because each of them is plaintiff in his turn, just as Gaius (4.160) calls some of the interdicts judicia duplicia. Under Justinian they are in reality in personam (Dig. 10, 1, 1), though distinguished from other personal actions in this, that by them disputed ownership could also be determined (Savigny, System, v. p. 36): the obligation upon which they are brought arising either ex contractu (as where the joint owners are socii, partners) or quasi ex contractu (communio incidens), as in the case of co-legatees and co-donees (Inst. 3.27, 3).

The object of the actio communi dividundo was to compel a judicial partition of jointly-owned property at the suit of one or some of the joint owners only; and therefore it could not be instituted until the ratio in which it belonged to them respectively was ascertained, this being sometimes the object of a previous suit (vindicatio partis: Dig. 10, 2, 1, 1; cf. Gaius, 4.54). It was maintainable whether the parties were technically owners (domini), or merely bonâ--fide possessors entitled to the actio Publiciana in rem; but where their joint title was a universal succession, civil or praetorian, this action would not lie, the proper remedy being the actio familiae erciscundae. The judge might take account of any damage done to the res communis, or any outlay upon it, or any profit received from it by any one of the joint owners in excess of the rest (Inst. 4.17, 4 and 5); and though bound by any agreement which they might have entered into as to the partition (Dig. 10, 3, 3 and 21), he was otherwise free to act at his own discretion, ex aequo et bono, doing the best he could for them. Thus, if the res communis were exactly divisible, the matter was easily settled; but if it were not so, he would divide it so far as was possible, compensating those who got less than their due share with a money payment (Inst. 4.17, 4 and 5), a usufruct, or other servitude (Dig. 17, 2, 6, 10; ib. 7, 1). If it could not be divided at all without depriving it of all value ( “veluti homo forte aut mulus erit,” Inst. [p. 1.514]loc. cit), he might adjudge it to one and direct him to compensate the rest with a money payment, or put it up to auction, either publicly or among the joint owners alone, and divide the purchase-money. (Dig. 10, 3; Cod. 3, 37, 3; Cic. Fam. 7.1. 2

[J.B.M]

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