Il "silenzio" sulla base della gl. Qui tacet, ad D.50.17.142

Abstract

The renowned fragment of Paul (D. 50.17.142: qui tacet, non utique fatetur: sed tamen verum est eum non negare ) can not be interpreted in a generic way, its true meaning and its scope are conditioned by its original context. This passage comes from the Book LVI of Paul’s Comments to Edict, whose title is confessis et indefensis. In the context of the text, the jurist tried to define two different situations: that of the confessus considered as if it were a judgment rende­ red against him as related in D. 42.2.1: confessus pro iudicato est, qui quadammodo sua sententia damnatur ; and that of the tacens (who does not defend himself) so that his silence would try to avoid any liability. In any case, it is sure that some Roman Law sources give several effects to the silent or the passive behavior from a legal point of view; it can not be attributed to silence an exclusive assessment valid for any type of activity or relationship. This follows from the exempla collected in gl. Qui tacet, ad D. 50.17.142 that are subject to review and revision.