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Justinian I · The Digest of Justinian §13.7.36.pr-13.7.36.1

Liability for Fraudulent Substitution of Pledges

Passage 2174 of 9271 · Latin

Summary

This section discusses the liability for substituting bronze for gold in a pledge, distinguishing theft from swindling based on timing, and notes that pledging another's or already-burdened property is also punished as swindling unless the property's high value prevents any loss.

[ULPIANUS libro undecimo ad edictum. ] §13.7.36.prSi quis in pignore pro auro aes sub- iecisset creditori, qualiter teneatur, quaesitum est.
[ULPIANUS, in his Eleventh Book on the Edict.] If someone has substituted bronze for gold in a pledge to a creditor, the question arose as to how he is liable.
in qua specie rectissime Sabinus scribit, si quidem dato auro aes subiecisset, furti teneri: quod si in dando aes subiecisset, turpiter fecisse, non furem esse.
In this kind of case, Sabinus writes most correctly that, if indeed he substituted bronze after the gold had been given, he is liable for theft; but if he substituted bronze in the act of giving it, he has acted dishonorably but is not a thief.
sed et hic puto pigneraticium iudicium locum habere, et ita Pomponius scribit.
However, I think that the action on pledge also lies in this case, and Pomponius writes to the same effect.
sed et extra ordinem stellionatus nomine plectetur, ut est saepissime rescriptum.
Furthermore, he shall be punished extraordinarily under the charge of stellionatus (swindling), as has very often been stated in rescripts.
§13.7.36.1Sed et si quis rem alienam mihi pignori dederit sciens prudensque uel si quis alii obligatam mihi obligauit nec me de hoc certiorauerit, eodem crimine plectetur.
But also, if anyone has knowingly and deliberately given me another person's property as a pledge, or if anyone has pledged to me property already obligated to someone else and did not inform me of this, he shall be punished with the same charge.
plane si ea res ampla est et ad modicum aeris fuerit pignerata, dici debebit cessare non solum stellionatus crimen, sed etiam pigneraticiam et de dolo actionem, quasi in nullo captus sit, qui pignori secundo loco accepit.
Clearly, if that property is of great value and was pledged for a small sum of money, it must be said that not only the crime of stellionatus ceases to apply, but also the action on pledge and the action de dolo (for fraud), just as if he who accepted it as a pledge in the second place was deceived in nothing.

Notes

  1. §13.7.36.prdato auro aes subiecisset ... in dando aes subiecisset — The phrase "dato auro" (after the gold had been given) is an ablative absolute with a perfect participle, while "in dando" (in the act of giving) is an ablative of the gerund. Sabinus uses this temporal and aspectual distinction to derive the different legal consequences between substitution after the transfer of possession (theft) and deception during the transfer (dishonorable act but not theft).
  2. §13.7.36.prfurti — A "genitive of charge" functioning with the verb teneo / teneri (to be held liable for or accused of).
  3. §13.7.36.1captus sit — The verb "capere" here means "to deceive," "to cheat," or "to harm," rather than "to capture" or "to take." It is in the perfect passive subjunctive, governed by the conjunction "quasi" (as if).

Cite this passage

Justinian I, The Digest of Justinian §13.7.36.pr-13.7.36.1. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:13.7.36.pr-13.7.36.1

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