Justinian I · The Digest of Justinian §12.1.32.pr

Equitable Obligation to Return Money Mistakenly Received

Passage 1887 of 9271 · Latin

Summary

On the question of whether a loan is contracted through a promise of payment based on a mistaken belief, Celsus decides that while no contract is formed, the recipient is obligated to return the money based on equity.

[CELSUS libro quinto digestorum. ] §12.1.32.prSi et me et Titium mutuam pecuniam rogaueris et ego meum debitorem tibi promittere iusserim, tu stipulatus sis, cum putares eum Titii debitorem esse, an mihi obligaris? subsisto, si quidem nullum negotium mecum contraxisti: sed propius est ut obligari te existimem, non quia pecuniam tibi credidi (hoc enim nisi inter consentientes fieri non potest): sed quia pecunia mea ad te peruenit, eam mihi a te reddi bonum et aequum est.

[CELSUS, from the fifth book of the Digests.] If you have asked both me and Titius for a loan of money, and I have ordered my debtor to promise it to you, and you have stipulated with him, thinking that he was the debtor of Titius, are you obligated to me? I hesitate, since indeed you have contracted no business with me; but it is more correct that I should think you are obligated, not because I have lent you the money (for this cannot take place except between consenting parties), but because my money has come to you, and it is good and equitable that it be returned to me by you.

Notes

12.1.32.pran mihi obligaris — The particle `an` is used here to introduce a direct question. While `an` typically introduces the second alternative of a disjunctive question, here it emphatically introduces the question ("are you then obligated to me?") following the complex hypothetical scenario. `obligaris` is the second-person singular present passive of the first-conjugation verb `obligare`.
12.1.32.prsubsisto — A verb meaning "I halt" or "I hesitate." The jurist Celsus expresses his hesitation between the strict legal form (no contract is formed due to the lack of agreement) and the requirement of equity.
12.1.32.prpropius est ut — An impersonal expression using the adjective `propius` (neuter comparative of `prope`, "near"), meaning "it is closer (to the truth)" or "it is more reasonable that..." The verb `existimem` in the clause introduced by `ut` is in the present subjunctive first-person singular.
12.1.32.prnon quia ... sed quia — Two clauses introduced by `quia` expressing reason are contrasted. Although the subjunctive is often used for a rejected reason (`non quia`) to show it is a mere hypothetical assumption, here the indicative (`credidi`) is used to emphasize the objective fact that no loan was actually contracted.

Cite this passage

Justinian I, The Digest of Justinian §12.1.32.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:12.1.32.pr

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