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Justinian I · The Digest of Justinian §13.7.35.pr-13.7.35.1

Allocation of Sale Proceeds and Possession of Pledges

Passage 2173 of 9271 · Latin

Summary

This text explains the order of allocating proceeds from the sale of a pledge between interest and principal (interest first), restricts the debtor's choice when insolvent, and states that a pledge transfers only possession, allowing the debtor to use the property under a precarious loan or lease.

[FLORENTINUS libro octauo institutionum. ] §13.7.35.prCum et sortis nomine et usurarum aliquid debetur ab eo, qui sub pignoribus pecuniam debet, quidquid ex uenditione pignorum recipiatur, primum usuris, quas iam tunc deberi constat, deinde si quid superest sorti accepto ferendum est: nec audiendus est debitor, si, cum parum idoneum se esse sciat, eligit, quo nomine exonerari pignus suum malit.
[FLORENTINUS, in his Eighth Book of Institutes.] When something is owed both on account of the principal and on account of interest by a person who owes money under pledges, whatever is received from the sale of the pledges must be credited first to the interest, which is established to be due already at that time, and then, if any surplus remains, to the principal. Nor is the debtor to be heard if, knowing that he is solvent only to an insufficient degree, he chooses on account of which name he would prefer his pledge to be released.
§13.7.35.1Pignus manente proprietate debitoris solam possessionem transfert ad creditorem: potest tamen et precario et pro conducto debitor re sua uti.
While the ownership remains with the debtor, a pledge transfers only possession to the creditor; nevertheless, the debtor can use his own property either precariously or under a lease.

Notes

  1. §13.7.35.praccepto ferendum est — An expression derived from Roman bookkeeping terminology. 'Accepto ferre' means 'to enter in the receipt column, to credit as received.' Here, it indicates the legal obligation of allocating the recovered amount first to interest and then to the principal.
  2. §13.7.35.prparum idoneum — While 'idoneus' generally means 'suitable,' in the context of debt performance, it means 'solvent, having sufficient means.' Combined with 'parum' (insufficiently), it refers to the debtor being 'insolvent' or having 'insufficient funds.'
  3. §13.7.35.1precario et pro conducto — This refers to the means by which the debtor may exceptionally use the property even after possession has been transferred to the creditor. It represents two different legal arrangements for retrieving possession: 'precario' (by precarious loan, subject to revocation at will) and 'pro conducto' (under a lease agreement, i.e., as a lessee).

Cite this passage

Justinian I, The Digest of Justinian §13.7.35.pr-13.7.35.1. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:13.7.35.pr-13.7.35.1

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