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Justinian I · The Digest of Justinian §13.7.4.pr

Sale of Pledge and Theft Liability under Non-Sale Pact

Passage 2142 of 9271 · Latin

Summary

This section discusses the agreement on selling a pledge and the buyer's acquisition of ownership, as well as the conditions under which a creditor is liable for theft if they sell the pledge despite an agreement not to sell it.

[ULPIANUS libro quadragensimo primo ad Sabinum. ] §13.7.4.prSi conuenit de distrahendo pignore siue ab initio siue postea, non tantum uenditio ualet, uerum incipit emptor dominium rei habere.
[ULPIAN, on Sabinus, Book XLI] If there is an agreement concerning the sale of the pledge, whether from the beginning or afterwards, not only is the sale valid, but the buyer begins to have the ownership of the thing.
sed etsi non conuenerit de distrahendo pignore, hoc tamen iure utimur, ut liceat distrahere, si modo non conuenit, ne liceat.
But even if there has been no agreement concerning the sale of the pledge, we nevertheless apply this rule of law, that it is permitted to sell it, provided only that there was no agreement that it should not be permitted.
ubi uero conuenit, ne distraheretur, creditor, si distraxerit, furti obligatur, nisi ei ter fuerit denuntiatum ut soluat et cessauerit.
However, where it was agreed that it should not be sold, if the creditor sells it, he is liable for theft, unless the debtor has been three times summoned to pay and has failed to do so.

Notes

  1. 13.7.4.prsi modo non conuenit, ne liceat — The conjunction si modo introduces a restrictive proviso ("provided only that"), and the subsequent clause conuenit, ne liceat means "it is agreed that it should not be permitted." Therefore, the entire phrase means "provided only that there was no agreement that it should not be permitted," limiting the default rule of law (hoc iure utimur) that allows the sale of a pledge even in the absence of an express agreement, unless there is an explicit prohibition.
  2. 13.7.4.prnisi ei ter fuerit denuntiatum ut soluat et cessauerit — The dative complement ei of the impersonal passive fuerit denuntiatum, as well as the subject of the subordinate verbs soluat and cessauerit, refers contextually to the debtor (debitori). The clause is thus interpreted as "unless three notices have been given to him (the debtor) to pay, and he (the debtor) has failed to do so."

Cite this passage

Justinian I, The Digest of Justinian §13.7.4.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:13.7.4.pr

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