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Justinian I · The Digest of Justinian §12.2.39.pr

Agreement Not to Sue Conditioned on an Oath

Passage 1936 of 9271 · Latin

Summary

Julianus states that an agreement not to demand money on the condition of an oath regarding any act (such as not ascending the Capitol) is valid, and if sworn, grants an objection and allows the recovery of payment.

[IULIANUS libro decimo digestorum. ] §12.2.39.prSi quis cum debitore suo pepigerit, ne ab eo pecunia peteretur, si iurasset se Capitolium non ascendisse uel aliud quodlibet fecisse uel non fecisse, isque iurauerit, et exceptio iurisiurandi dari debebit et solutum repeti poterit: est enim iusta conuentio, si quaelibet causa in condicione iurisiurandi deducta fuerit.
[JULIANUS, Book 10 of the Digests.] If anyone has agreed with his debtor that money should not be demanded from him, provided that he swore that he had not ascended the Capitol, or had done or not done any other thing whatsoever, and he has sworn to this, both the objection of an oath must be granted and what has been paid can be recovered; for it is a valid agreement if any matter whatsoever has been brought into the condition of an oath.

Notes

  1. §12.2.39.prsi iurasset — The pluperfect subjunctive (contracted form of iuravisset). In indirect discourse depending on a past agreement (pepigerit), it represents a future-perfect condition ('if he should have sworn') shifted in tense according to the rules of sequence.
  2. §12.2.39.prexceptio iurisiurandi — The 'objection of an oath' (exceptio iurisiurandi). A procedural defense granted to a defendant to block the plaintiff's claim based on the fact that an oath has been taken (or refused) according to their agreement.
  3. §12.2.39.prsolutum repeti poterit — Meaning 'what has been paid can be recovered'. Since the oath extinguished the actionable debt (by providing an exceptio), any subsequent payment made in error is considered a payment of what was not due (solutio indebiti), allowing for a recovery action (condictio).

Cite this passage

Justinian I, The Digest of Justinian §12.2.39.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:12.2.39.pr

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