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Justinian I · The Digest of Justinian §13.7.1.pr-13.7.1.2

Establishment of Pledge by Agreement and Mistake of Material

Passage 2139 of 9271 · Latin

Summary

Ulpian explains that a pledge can be established by mere agreement and discusses the validity of the pledge when the delivered physical object differs from the agreed-upon gold, or when there is a mistake of material while the physical identity is agreed upon.

[ULPIANUS libro quadragensimo ad Sabinum. ] §13.7.1.prPignus contrahitur non sola traditione, sed etiam nuda conuentione, etsi non traditum est.
[ULPIANUS, on Sabinus, Book XL] A pledge is contracted not only by delivery, but also by mere agreement, even if it has not been delivered.
§13.7.1.1Si igitur contractum sit pignus nuda conuentione, uideamus, an, si quis aurum ostenderit quasi pignori daturus et aes dederit, obligauerit aurum pignori: et consequens est ut aurum obligetur, non autem aes, quia in hoc non consenserint.
Therefore, if a pledge has been contracted by mere agreement, let us see whether, if someone has shown gold as if about to give it as a pledge but has delivered bronze, he has bound the gold as a pledge: and the consequence is that the gold is bound, but not the bronze, because they did not consent to the latter.
§13.7.1.2Si quis tamen, cum aes pignori daret, adfirmauit hoc aurum esse et ita pignori dederit, uidendum erit, an aes pignori obligauerit et numquid, quia in corpus consensum est, pignori esse uideatur: quod magis est.
However, if someone, when giving bronze as a pledge, asserted that this was gold and so gave it as a pledge, it must be considered whether he has bound the bronze as a pledge and whether, because consent was given to the physical object itself, it should be regarded as a pledge: which is the better view.
tenebitur tamen pigneraticia contraria actione qui dedit, praeter stellionatum quem fecit.
Nevertheless, the one who gave it will be liable under the contrary action of pledge, in addition to the fraud which he has committed.

Notes

  1. 13.7.1.1quasi pignori daturus — daturus is a future active participle which, accompanied by the conjunction quasi ('as if'), functions adverbially to express the intention or purpose of the subject ('as if about to give').
  2. 13.7.1.2quia in corpus consensum est — consensum est is an impersonal passive meaning 'consent was reached'. Here, corpus (the physical body/identity) is used as a contrasting concept to indicate that there was agreement on the identity of the specific physical object itself, despite a mistake regarding its material (materia).
  3. 13.7.1.2quod magis est — The relative pronoun quod refers to the entire preceding clause (an... uideatur), and magis est is an idiomatic expression indicating that the view in question is 'more approved' or 'the better opinion' among jurists.

Cite this passage

Justinian I, The Digest of Justinian §13.7.1.pr-13.7.1.2. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:13.7.1.pr-13.7.1.2

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