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Justinian I · The Digest of Justinian §10.2.29.pr

Pledged Property in Partition and Rights of Adjudicatee

Passage 1667 of 9271 · Latin

Summary

This text discusses how a pledged object held by the deceased as a creditor falls under the action for the division of an inheritance, the pecuniary adjustment between co-heirs upon adjudication, the defense available against the reclaiming owner, and the distinction between necessary adjudication and voluntary purchase of a co-heir's share.

[PAULUS libro uicensimo tertio ad edictum. ] §10.2.29.prSi pignori res data defuncto sit, dicendum est in familiae erciscundae iudicium uenire: sed is cui adiudicabitur in familiae erciscundae iudicio pro parte coheredi erit damnandus nec cauere debet coheredi indemnem eum fore aduersus eum qui pignori dederit, quia pro eo erit, ac si hypothecaria uel Seruiana actione petita litis aestimatio oblata sit, ut et is qui optulerit aduersus dominum uindicantem exceptione tuendus sit.
[PAULUS libro uicensimo tertio ad edictum.] If a thing has been given in pledge to the deceased, it must be said that it falls into the action for the division of an inheritance. But the heir to whom it is adjudicated in the action for the division of an inheritance must be condemned to pay the co-heir in proportion to his share, and he does not have to guarantee to the co-heir that the latter will be held harmless against the person who gave the pledge. For it will be treated in the same way as if, a hypothecary or Servian action having been brought, the estimated value of the suit has been offered, so that he who has made the offer must also be protected by an exception against the owner who claims the property.
contra quoque si is heres, cui pignus adiudicatum est, uelit totum reddere, licet debitor nolit, audiendus est.
Conversely, if the heir to whom the pledge has been adjudicated wishes to return the whole, even though the debtor does not wish it, he must be heard.
non idem dici potest, si alteram partem creditor emerit: adiudicatio enim necessaria est, emptio uoluntaria: nisi si obiciatur creditori, quod animose licitus sit.
The same cannot be said if the creditor has purchased the other share; for adjudication is necessary, whereas purchase is voluntary, unless it is objected against the creditor that he bid eagerly.
sed huius rei ratio habebitur, quia quod creditor egit, pro eo habendum est ac si debitor per procuratorem egisset et eius, quod propter necessitatem impendit, etiam ultro est actio creditori.
But allowance will be made for this, because what the creditor did is to be regarded as if the debtor had done it through an agent, and the creditor even has an action for what he expended out of necessity.

Notes

  1. §10.2.29.prdefuncto — Dative singular of "defunctus" (the deceased), functioning as the recipient of "pignori res data" (the thing given in pledge).
  2. §10.2.29.prcoheredi erit damnandus — Indicates that the heir to whom the property is adjudicated in the partition suit must be condemned ("damnandus erit") to pay pecuniary compensation to the co-heir ("coheredi", dative) in proportion to the latter's share.
  3. §10.2.29.prindemnem eum fore — The pronoun "eum" in the accusative-and-infinitive clause "indemnem eum fore" refers back to "coheredi". The heir receiving the adjudicated property need not guarantee that the co-heir will be held harmless from subsequent claims by the debtor.
  4. §10.2.29.prpro eo erit, ac si — An idiomatic expression meaning "it will be treated in the same way as if...", establishing an equivalence between the two legal situations.
  5. §10.2.29.pranimose — An adverb meaning "eagerly" or "with spirit/obstinacy", here referring to bidding excessively or competitively in an auction to prevent others from acquiring the share.

Cite this passage

Justinian I, The Digest of Justinian §10.2.29.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:10.2.29.pr

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