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Justinian I · The Digest of Justinian §13.5.16.pr-13.5.16.4

Joint Promise, Place of Performance, and the Edict

Passage 2099 of 9271 · Latin

Summary

Ulpian discusses the liability when two people make a promise of payment together, the specification of place and time for performance, and the interpretation of the praetorian edict regarding the failure of performance and the relief of the debtor.

[ULPIANUS libro uicensimo septimo ad edictum. ] §13.5.16.prSi duo quasi duo rei constituerimus, uel cum altero agi poterit in solidum.
[ULPIANUS, from the twenty-seventh book on the Edict.] If two of us make a promise as if we were two codebtors, an action can be brought against either for the whole amount.
§13.5.16.1Sed et certo loco et tempore constituere quis potest, nec solum eo loci posse eum petere, ubi ei constitutum est, sed exemplo arbitrariae actionis ubique potest.
But a person can also make a promise for a specific place and time, and he can sue not only in the place where the promise was made to him, but anywhere, following the example of the action on an award.
§13.5.16.2Ait praetor: "si appareat eum qui constituit neque soluere neque fecisse neque per actorem stetit, quo minus fieret quod constitutum est. " §13.5.16.3Ergo si non stetit per actorem, tenet actio, etiamsi per rerum naturam stetit: sed magis dicendum est subueniri reo debere.
The praetor says: "If it should appear that the person who made the promise has neither paid nor performed, and that it was not due to the plaintiff that what was promised was not performed." Therefore, if it was not due to the plaintiff, the action lies, even if it was due to the nature of things; but it should rather be said that the defendant ought to be relieved.
§13.5.16.4Haec autem uerba praetoris "neque fecisse reum quod constituit" utrum ad tempus constituti pertinent an uero usque ad litis contestationem trahimus, dubitari potest: et puto ad tempus constituti.
However, it can be doubted whether these words of the praetor "and that the defendant has not performed what he promised" refer to the time of the promise, or whether we should extend them up to the joinder of issue; and I think they refer to the time of the promise.

Notes

  1. §13.5.16.prconstituerimus — The verb `constituerimus` is the first-person plural perfect (or future perfect) active of *constituo*, with the subject 'we' (*nos*) understood. `duo` is understood as appositive to this subject ('two of us'). Although some manuscripts read `constituerint` (third-person plural), the present interpretation follows the first-person plural active.
  2. §13.5.16.1eo loci — The adverb `eo` (thither, in that place) is combined with the partitive genitive `loci` (of place) to mean 'in that place'.
  3. §13.5.16.2per actorem stetit, quo minus — This is an application of the idiomatic construction `stare per aliquem quominus` + subjunctive, meaning 'to be due to someone that ... not' or 'to be someone's fault that ... not'. Here, the impersonal `stetit` is used to mean 'it was not due to the plaintiff that the promise was not performed.'
  4. §13.5.16.3subueniri reo debere — Since the verb *subvenio* (to relieve, help) governs the dative case, it can only be used impersonally in the passive voice. In this accusative-with-infinitive (A.C.I.) construction, the impersonal passive infinitive `subueniri` is used, and the original dative `reo` is retained.

Cite this passage

Justinian I, The Digest of Justinian §13.5.16.pr-13.5.16.4. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:13.5.16.pr-13.5.16.4

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