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Justinian I · The Digest of Justinian §12.5.8.pr

Bar to Recovery for Immoral Promises and the In Pari Delicto Rule

Passage 1974 of 9271 · Latin

Summary

This section explains that in a promise made for an immoral cause, performance can be resisted by a plea before payment, but once paid, recovery is generally barred because the underlying immorality remains, and the possessor's position is stronger when both parties acted immorally.

[PAULUS libro tertio quaestionum. ] §12.5.8.prSi ob turpem causam promiseris Titio, quamuis, si petat, exceptione doli mali uel in factum summouere eum possis, tamen si solueris, non posse te repetere, quoniam sublata proxima causa stipulationis, quae propter exceptionem inanis esset, pristina causa, id est turpitudo, superesset: porro autem si et dantis et accipientis turpis causa sit, possessorem potiorem esse et ideo repetitionem cessare, tametsi ex stipulatione solutum est.
[PAULUS, Third Book of Questions.] If you have promised Titius for an immoral cause, although, if he should sue, you could defeat him by the plea of fraud or a plea on the facts, nevertheless, if you have paid, it is held that you cannot recover; for when the immediate cause of the stipulation, which would have been ineffectual on account of the plea, is removed, the original cause, that is, the immorality, remains. Furthermore, if the cause is immoral on the part of both the giver and the receiver, the possessor has the better position, and therefore recovery is barred, even if payment was made on the basis of a stipulation.

Notes

  1. §12.5.8.prnon posse te repetere — An accusative with infinitive (AcI) clause. The entire fragment is cast in indirect speech reporting the jurist Paul's opinion, with the main governing verb (such as "he says" or "it is held") being omitted. The subsequent clauses 'possessorem potiorem esse' and 'repetitionem cessare' share this same structure.
  2. §12.5.8.prsublata proxima causa stipulationis — An ablative absolute construction with the noun 'causa' and the perfect participle 'sublata' (from tollere). It refers to the situation where, by performance (solutio), the obligation of the stipulation (stipulatio), which was the 'immediate cause' blocking a formal recovery claim, has been extinguished.
  3. §12.5.8.prquae propter exceptionem inanis esset — The subjunctive imperfect (esset) in a relative clause, expressing a past counterfactual or implicit condition: 'which, had a claim been made, would have been empty (ineffectual) on account of the plea.'

Cite this passage

Justinian I, The Digest of Justinian §12.5.8.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:12.5.8.pr

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