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Justinian I · The Digest of Justinian §12.1.3.pr

Obligation to Return Goods of Equal Quality in Mutuum

Passage 1858 of 9271 · Latin

Summary

Explains that even in the absence of an express agreement in a loan for consumption, the debtor is not permitted to return an inferior quality item of the same kind, but must return an item of the same kind and quality as that which was given.

[POMPONIUS libro uicensimo septimo ad Sabinum. ] §12.1.3.prCum quid mutuum dederimus, etsi non cauimus, ut aeque bonum nobis redderetur, non licet debitori deteriorem rem, quae ex eodem genere sit, reddere, ueluti uinum nouum pro uetere: nam in contrahendo quod agitur pro cauto habendum est, id autem agi intellegitur, ut eiusdem generis et eadem bonitate soluatur, qua datum sit.
[POMPONIUS, On Sabinus, book 27] When we have given something as a loan for consumption, even if we have not expressly provided that an equally good thing should be returned to us, it is not permitted for the debtor to return an inferior thing, even if it is of the same kind, as for instance, new wine instead of old; for in contracting, what is intended must be held as if it had been expressly provided, and it is understood that this is intended, namely, that performance should be made with the same kind and the same quality as that which was given.

Notes

  1. 12.1.3.pretsi non cauimus, ut aeque bonum nobis redderetur — The `ut` clause (with the imperfect subjunctive `redderetur`) introduced by the verb `cavere` (to provide, stipulate) is a noun clause expressing the content of the provision. It explains the context in which, even without an express contractual clause, an implied agreement is deemed to exist.
  2. 12.1.3.prpro cauto habendum est — The gerundive `habendum est` (must be regarded) is combined with the preposition `pro` (as) and the ablative of the substantivized neuter perfect passive participle of `cavere`, `cautum` (what has been stipulated), meaning "must be regarded as having been expressly stipulated."
  3. 12.1.3.prid autem agi intellegitur, ut — `id` is a demonstrative pronoun anticipating the following `ut` clause (in apposition or as a noun clause), `agi` is the present passive infinitive of `agere` (to intend, act for), and `intellegitur` is the passive verb "it is understood." The whole structure means "it is understood that this very thing is intended, namely that..."

Cite this passage

Justinian I, The Digest of Justinian §12.1.3.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:12.1.3.pr

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