Justinian I · The Digest of Justinian §12.1.42.pr-12.1.42.1

Guaranty for Deficit and Stipulation to Arrange Payment

Passage 1897 of 9271 · Latin

Summary

This passage discusses the scope of liability and discharge in consecutive stipulations with a principal debtor and a guarantor for the deficit, as well as the restriction on maintaining an action when the stipulation is for "arranging payment."

[CELSUS libro sexto digestorum. ] §12.1.42.prSi ego decem stipulatus a Titio deinceps stipuler a Seio, quanto minus a Titio consequi possim: si decem petiero a Titio, non liberatur Seius, alioquin nequicquam mihi cauetur: at si iudicatum fecerit Titius, nihil ultra Seius tenebitur.

[CELSUS, from the sixth book of Digests.] If I, having stipulated for ten from Titius, should then stipulate from Seius for whatever less I might be able to recover from Titius: if I sue Titius for ten, Seius is not released, otherwise my security would be in vain. But if Titius satisfies the judgment, Seius will be liable for nothing further.

sed si cum Seio egero, quantumcumque est quo minus a Titio exigere potuero eo tempore, quo iudicium inter me et Seium acceptum est, tanto minus a Titio postea petere possum.

However, if I sue Seius, whatever is the amount by which I was unable to recover from Titius at the time when the joinder of issue was accepted between me and Seius, by so much less can I afterwards sue Titius.

§12.1.42.1Labeo ait, cum decem dari curari stipulatus sis, ideo non posse te decem dare oportere intendere, quia etiam reum locupletiorem dando promissor liberari possit: quo scilicet significat non esse cogendum eum accipere iudicium, si reum locupletem offerat.

Labeo says that when you have stipulated for "ten to be taken care of to be given," you cannot therefore maintain that "he ought to give ten," because the promisor can be released even by providing a solvent debtor. By this, of course, he means that the stipulator is not to be compelled to accept a trial if the promisor offers a solvent debtor.

Notes

12.1.42.prquanto minus a Titio consequi possim — A relative clause acting as the object of the verb `stipuler`, meaning "by how much less I might be able to recover from Titius" (i.e., the deficit). `quanto` is an ablative of degree of difference, which together with `minus` functions adverbially, making the whole clause represent the quantity of the deficit.
12.1.42.priudicium inter me et Seium acceptum est — A technical legal expression in Roman law. `iudicium accipere` refers to accepting the formula and agreeing to trial, i.e., "joinder of issue" (*litis contestatio*). Here used in the passive voice, it designates the specific moment in time when the legal proceedings were formally established between the plaintiff and the defendant.
12.1.42.1decem dari curari — The juxtaposition of two passive infinitives, `dari` (to be given) and `curari` (to be cared for/arranged), representing an indirect obligation to "arrange for ten to be paid." This is distinguished from a direct obligation to "give ten" (*decem dare*), leaving room for alternative methods of performance, such as providing a guarantor.
12.1.42.1non esse cogendum eum accipere iudicium — An impersonal construction or accusative with infinitive clause with the gerundive `cogendum [esse]`, where the subject accusative `eum` refers to the stipulator (creditor). It means that the stipulator is not to be forced to proceed to trial (or accept the formula) against the promisor if the latter has already offered a solvent third-party debtor.

Cite this passage

Justinian I, The Digest of Justinian §12.1.42.pr-12.1.42.1. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:12.1.42.pr-12.1.42.1

Please note the AI-draft status of the translation and the date accessed.

Translation, notes and summary are AI-generated drafts, revised through reader feedback.