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Justinian I · The Digest of Justinian §10.2.3.pr

Allocation of Entire Debts and Claims by the Judge

Passage 1640 of 9271 · Latin

Summary

Gaius explains that in the division of an inheritance, the judge has the discretion to allocate entire debts and claims to specific heirs, and that this allocation operates procedurally through representation in litigation rather than by changing substantive rights.

[GAIUS libro septimo ad edictum prouinciale. ] §10.2.3.prPlane ad officium iudicis nonnumquam pertinet, ut debita et credita singulis pro solido aliis alia adtribuat, quia saepe et solutio et exactio partium non minima incommoda habet.
[GAIUS, on the Provincial Edict, book 7] Clearly, it sometimes belongs to the office of the judge to attribute the debts and assets to individual heirs in full, different ones to different persons, because often both the payment and the collection of divided shares entail no small inconvenience.
nec tamen scilicet haec adtributio illud efficit, ut quis solus totum debeat uel totum alicui soli debeatur, sed ut, siue agendum sit, partim suo partim procuratorio nomine agat, siue cum eo agatur, partim suo partim procuratorio nomine conueniatur.
Yet, of course, this attribution does not have the effect that one person alone should owe the whole or that the whole should be owed to some one person alone; rather, it has the effect that, whether an action is to be brought, he sues partly in his own name and partly in the name of a procurator, or whether an action is brought against him, he is sued partly in his own name and partly in the name of a procurator.
nam licet libera potestas esse maneat creditoribus cum singulis experiundi, tamen et his libera potestas est suo loco substituendi eos, in quos onera actionis officio iudicis translata sunt.
For although creditors retain a free power to proceed against individual heirs, nevertheless these heirs also have a free power to substitute in their own place those to whom the burdens of the action have been transferred by the office of the judge.

Notes

  1. §10.2.3.prpro solido — Meaning 'in full' or 'for the whole amount'. Although under the Law of the Twelve Tables debts and assets were divided among co-heirs automatically, the judge could, through his office (officium iudicis), allocate an entire debt or claim to a single heir to avoid practical inconveniences.
  2. §10.2.3.prprocuratorio nomine — Meaning 'in the name of a procurator'. Since the judge's allocation did not transfer the substantive rights or debts under civil law, the legal effect was achieved procedurally through the representation of a procurator, allowing one to sue or be sued as an agent/procurator of the other heirs.
  3. §10.2.3.prlicet libera potestas esse maneat creditoribus — The conjunction licet governs the subjunctive maneat to form a concessive clause ('although...'), which is answered by tamen in the main clause. Since the substantive debt remained legally divided under civil law, third-party creditors could still sue individual heirs for their original shares; however, the sued heir could substitute in their place (suo loco) the heir to whom the judge had allocated that specific debt.

Cite this passage

Justinian I, The Digest of Justinian §10.2.3.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:10.2.3.pr

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