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Justinian I · The Digest of Justinian §13.4.8.pr

Surety Liability and Arbitrary Actions for Payment at a Set Place

Passage 2081 of 9271 · Latin

Summary

Discusses the obligation of a surety in a promise to pay at Capua, explaining its equivalence to the debtor's liability, the distinction from interest obligations, and the judge's role in valuation after partial payment.

[AFRICANUS libro tertio quaestionum. ] §13.4.8.prCentum Capuae dari stipulatus fideiussorem accepisti: ea pecunia ab eo similiter ut ab ipso promissore peti debebit, id est ut, si alibi quam Capuae petantur, arbitraria agi debeat lisque tanti aestimetur, quanti eius uel actoris interfuerit eam summam Capuae potius quam alibi solui.
[AFRICANUS from the third book of Questions.] If you have stipulated for one hundred to be given at Capua and have accepted a surety: that money must be claimed from him in the same way as from the promisor himself, that is, if it is claimed elsewhere than at Capua, an arbitrary action must be brought, and the suit must be valued at as much as it was of interest to him or to the plaintiff that that sum be paid at Capua rather than elsewhere.
nec oportebit, quod forte per reum steterit, quo minus tota centum Capuae soluerentur, obligationem fideiussoris augeri: neque enim haec causa recte comparabitur obligationi usurarum: ibi enim duae stipulationes sunt, hic autem una pecuniae creditae est, circa cuius exsecutionem aestimationis ratio arbitrio iudicis committitur.
Nor will it be proper that the obligation of the surety be increased because it was perhaps due to the debtor that the entire one hundred was not paid at Capua; for this case will not rightly be compared to the obligation for interest: for there, there are two stipulations, but here there is only one for the money lent, concerning the execution of which the method of valuation is committed to the discretion of the judge.
eiusque differentiae manifestissimum argumentum esse puto, quod, si post moram factam pars pecuniae soluta sit et reliquum petatur, officium iudicis tale esse debeat, ut aestimet, quanti actoris intersit eam dumtaxat summam quae petetur Capuae solutam esse.
And I think the clearest proof of this difference is that, if after default has been made a part of the money has been paid and the remainder is claimed, the duty of the judge ought to be such that he values how much it is of interest to the plaintiff that only that sum which is being claimed was paid at Capua.

Notes

  1. §13.4.8.prquanti eius uel actoris interfuerit — Syntactically, this uses the impersonal verb `interest`, where the persons concerned are expressed by the genitives (`eius` and `actoris`), and the degree of interest is expressed by the genitive of value (`quanti`). Here, `eius` refers to the debtor or the surety.
  2. §13.4.8.prper reum steterit, quo minus — The idiom `per aliquem stat quo minus` means "it is due to someone that... not" or "someone is responsible for preventing...". Here it indicates that the debtor was responsible for the failure to pay the full hundred at Capua.
  3. §13.4.8.prtale esse debeat, ut aestimet — The correlative construction `tale... ut` describes the specific nature or content of the judge's duty (`officium iudicis`). The verb `aestimet` in the `ut`-clause is in the present subjunctive.
  4. §13.4.8.pream dumtaxat summam quae petetur Capuae solutam esse — An accusative with infinitive (AcI) construction serving as the subject of the verb `intersit`. The accusative `eam summam` accompanied by `dumtaxat` ("only") is the subject of the passive infinitive `solutam esse`.

Cite this passage

Justinian I, The Digest of Justinian §13.4.8.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:13.4.8.pr

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