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Justinian I · The Digest of Justinian §13.5.3.pr-13.5.3.2

Limitations, Exceptions, and Term Debts in Constitutum

Passage 2086 of 9271 · Latin

Summary

This chunk discusses the scope of liability when a husband promises to pay from a dowry beyond his means, the validity of a promise made on a debt due under civil law but subject to a praetorian exception, and the validity of a promise made regarding a debt subject to a term before its expiration.

[ULPIANUS libro uicensimo septimo ad edictum. ] §13.5.3.prQuod si maritus plus constituit ex dote quam facere poterat, quia debitum constituerit, in solidum quidem tenetur, sed mulieri in quantum facere potest condemnatur.
[ULPIAN, from the twenty-seventh book on the Edict.] But if a husband has promised to pay more out of the dowry than he is able to perform, because he has promised a debt already due, he is indeed held liable for the whole amount, but to his wife he is condemned only in so far as he is able to perform.
§13.5.3.1Si quis autem constituerit quod iure ciuili debebat, iure praetorio non debebat, id est per exceptionem, an constituendo teneatur, quaeritur: et est uerum, ut et Pomponius scribit, eum non teneri, quia debita iuribus non est pecunia quae constituta est.
But if someone has promised to pay what he owed under civil law, but did not owe under praetorian law, that is, which was barred by an exception, the question is whether he is held liable on his promise: and it is true, as Pomponius also writes, that he is not held liable, because the money which was promised is not due under the laws.
§13.5.3.2Si is, qui et iure ciuili et praetorio debebat, in diem sit obligatus an constituendo teneatur? et Labeo ait teneri constitutum, quam sententiam et Pedius probat: et adicit Labeo uel propter has potissimum pecunias, quae nondum peti possunt, constituta inducta: quam sententiam non inuitus probarem: habet enim utilitatem, ut ex die obligatus constituendo se eadem die soluturum teneatur.
If he who owed both under civil and praetorian law was obligated to pay on a future day, is he held liable on a promise? And Labeo says that the promise is binding, an opinion which Pedius also approves: and Labeo adds that it was chiefly for the sake of these very moneys which cannot yet be sued for, that promises of payment were introduced: which opinion I would not unwillingly approve: for it has this utility, that one who is obligated to pay on a future day is held liable by promising that he will pay on that same day.

Notes

  1. §13.5.3.prin quantum facere potest — The phrase 'facere potest' (what he is able to perform) refers in a legal context to the debtor's financial capacity, known as the 'benefit of competence' (beneficium competentiae). Even if a husband has promised more than his means, he is only condemned to pay within the limit of his financial capacity when sued by his wife.
  2. §13.5.3.1quia debita iuribus non est pecunia quae constituta est — The plural form 'iuribus' (from 'ius') refers to both systems of law, civil and praetorian. A debt that is effectively unenforceable due to an exception is not considered 'money due under the laws,' and therefore the promise of payment (constitutum) itself is invalid.
  3. §13.5.3.2ex die obligatus — The phrase 'ex die' (from a certain day) refers to a debtor obligated subject to a future term (in diem). This clause explains the practical utility of allowing a debtor with a future term to bind himself in advance to pay on that very same day, thereby rendering him liable under the action on a promise of payment.

Cite this passage

Justinian I, The Digest of Justinian §13.5.3.pr-13.5.3.2. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:13.5.3.pr-13.5.3.2

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