Humanitext Reader

Justinian I · The Digest of Justinian §13.7.16.pr-13.7.16.2

Pledges by Guardians and Liability for Defective Pledges

Passage 2154 of 9271 · Latin

Summary

This section discusses the validity of pledges created by tutors or curators, the debtor's civil and criminal liability when pledging another's or encumbered property, the limitation on the creditor's contrary action, and the eligibility of land subject to rent or superficies to be pledged.

[PAULUS libro uicensimo nono ad edictum. ] §13.7.16.prTutor lege non refragante si dederit rem pupilli pignori, tuendum erit, scilicet si in rem pupilli pecuniam accipiat.
[PAULUS, on the Edict, Book XXIX] If a tutor, where the law does not forbid it, has given the property of his pupil in pledge, it must be protected, that is, of course, if he receives the money for the benefit of the pupil.
idem est et in curatore adulescentis uel furiosi.
The same applies to the curator of a youth or a madman.
§13.7.16.1Contrariam pigneraticiam creditori actionem competere certum est: proinde si rem alienam uel alii pigneratam uel in publicum obligatam dedit, tenebitur, quamuis et stellionatum crimen committat.
It is established that the contrary action on pledge is available to the creditor; therefore, if the debtor has given property belonging to another, or property pledged to someone else, or obligated to the public, he will be liable, even though he also commits the crime of stellionatus.
sed utrum ita demum, si scit, an et si ignorauit? et quantum ad crimen pertinet, excusat ignorantia: quantum ad contrarium iudicium, ignorantia eum non excusat, ut Marcellus libro sexto digestorum scribit.
But is he liable only if he knows, or also if he was ignorant? As far as the crime is concerned, ignorance excuses him; but as far as the contrary judgment is concerned, ignorance does not excuse him, as Marcellus writes in the sixth book of his Digests.
sed si sciens creditor accipiat uel alienum uel obligatum uel morbosum, contrarium ei non competit.
But if the creditor knowingly accepts property that belongs to another, is obligated, or is defective, the contrary action is not available to him.
§13.7.16.2Etiam uectigale praedium pignori dari potest: sed et superficiarium, quia hodie utiles actiones superficiariis dantur.
Even land subject to rent can be given in pledge; but so can land subject to superficies, because today useful actions are granted to those who hold superficies.

Notes

  1. §13.7.16.prtuendum erit — An impersonal use of the gerundive of tueor (to protect), where the omitted subject refers to the pledge or its creation, meaning "it must be protected" or "upheld as valid."
  2. §13.7.16.prlege non refragante — An ablative absolute construction consisting of the ablative singular of lex (law) and the ablative present participle of refragor (to oppose, resist). It translates to "law not opposing" or "provided the law does not forbid it."
  3. §13.7.16.1sed utrum ita demum, si scit, an et si ignorauit? — A double question introduced by utrum ... an ... ("whether ... or ..."). The main verb (such as teneatur, "is he liable") is omitted, leaving the conditional clauses si scit ("if he knows") and et si ignorauit ("even if he was ignorant") to contrast the conditions of liability.
  4. §13.7.16.1morbosum — An adjective derived from morbus (disease, defect), meaning "diseased" or "defective." In the context of pledge, it refers to slaves or beasts of burden that possess physical or mental defects.
  5. §13.7.16.2utiles actiones — "Useful actions" or "analogous actions." These were equitable remedies granted by the praetor by extending existing civil law actions through fictions or analogies to situations not strictly covered by the civil law. Here, it refers to the extension of proprietary protection to the holder of superficies, which was originally a contractual interest.

Cite this passage

Justinian I, The Digest of Justinian §13.7.16.pr-13.7.16.2. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:13.7.16.pr-13.7.16.2

Please note the AI-draft status of the translation and the date accessed.

Translation, notes and summary are AI-generated drafts, revised through reader feedback.