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Justinian I · The Digest of Justinian §12.1.15.pr

Establishment of a Loan Without Physical Transfer of Money

Passage 1870 of 9271 · Latin

Summary

This text explains the exceptional legal rules governing loans, where a loan is established without physical transfer of money, either by ordering a debtor to pay a third party or by converting an existing debt into a loan by agreement.

[IDEM libro trigensimo primo ad edictum. ] §12.1.15.prSingularia quaedam recepta sunt circa pecuniam creditam.
[THE SAME, On the Edict, Book 31] Certain exceptional rules have been accepted concerning loaned money.
nam si tibi debitorem meum iussero dare pecuniam, obligaris mihi, quamuis meos nummos non acceperis.
For if I order my debtor to give money to you, you become obligated to me, even though you have not received my coins.
quod igitur in duabus personis recipitur, hoc et in eadem persona recipiendum est, ut, cum ex causa mandati pecuniam mihi debeas et conuenerit, ut crediti nomine eam retineas, uideatur mihi data pecunia et a me ad te profecta.
Therefore, what is accepted in the case of two persons must also be accepted in the case of the same person; so that, when you owe me money on account of a mandate, and it is agreed that you may retain it as a loan, the money is deemed to have been given to me and to have proceeded from me to you.

Notes

  1. §12.1.15.prin duabus personis — The phrase "in the case of two persons" refers to the tripartite scenario in the preceding sentence where "my debtor" and "you" act as two distinct persons under the creditor's order. This is contrasted with "the same person" (in eadem persona), in which the existing debtor themselves retains the money as a borrower.
  2. §12.1.15.pruideatur mihi data pecunia et a me ad te profecta — The subjunctive present "uideatur" is introduced by the preceding "ut". It expresses a legal fiction (fictio) whereby, even without any physical transfer of coins (traditio), the money is deemed to have been returned to the creditor (me) and then immediately given back to the debtor (you) as a loan, fulfilling the requirement of delivery (traditio brevi manu).

Cite this passage

Justinian I, The Digest of Justinian §12.1.15.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:12.1.15.pr

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