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Justinian I · The Digest of Justinian §12.2.18.pr

Inadmissibility of Oaths Tendered by Unqualified Agents

Passage 1915 of 9271 · Latin

Summary

An oath tendered by a procurator who does not meet specific qualifications should not be accepted, to protect the defendant from being sued again by the principal and from facing the burden of proof even if security for ratification was provided.

[ULPIANUS libro uicensimo sexto ad edictum. ] §12.2.18.pralias autem procuratorem deferentem iusiurandum non esse audiendum Iulianus libro decimo digestorum scribit, ne postea reus, qui semel iurauit, a domino conueniatur: nec multum ei proficere, si fuerit ei de rato cautum: siue enim dominus petat, cogetur docere reus liquido se iurasse posita scilicet exceptione, siue ex stipulatione de rato agat, necesse habebit ipse de periurio suo docere.
[ULPIANUS, Book XXVI on the Edict.] Julian writes in the tenth book of his Digests that in other cases a procurator tendering an oath should not be heard, lest the defendant, who has once taken the oath, be afterwards sued by the principal; and that it is of no great benefit to him, even if security has been given to him for ratification. For whether the principal sues, the defendant will be compelled to show that he clearly took the oath, having of course pleaded the exception, or if he brings an action under the stipulation for ratification, he himself will have to show his own perjury.

Notes

  1. §12.2.18.pralias — Refers to general procurators other than those who meet the specific requirements (administration of all property, special mandate, or acting in their own interest) mentioned in the preceding section (12.2.17.3).
  2. §12.2.18.prprocuratorem deferentem iusiurandum non esse audiendum — This phrase and the subsequent `nec multum ei proficere` are both accusative with infinitive (Aci) constructions governed by `Iulianus ... scribit`.
  3. §12.2.18.prde rato cautum — Refers to the giving of security for ratification (`de rato habendo`). It means the security (stipulatio de rato habendo) provided to the defendant that the principal will ratify the act of the procurator who lacked proper authority.
  4. §12.2.18.prde periurio suo docere — Refers to the procedural disadvantage where, if the defendant is sued again by the principal because the procurator lacked authority, the defendant must sue the procurator under the security for ratification, but in that action he must prove that the oath he took was in fact ineffective (equivalent to perjury in relation to the true creditor).

Cite this passage

Justinian I, The Digest of Justinian §12.2.18.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:12.2.18.pr

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