Humanitext Reader

Justinian I · The Digest of Justinian §13.7.40.pr-13.7.40.2

Purchase of Pledge by Debtor and Duty of Return

Passage 2178 of 9271 · Latin

Summary

Discusses the legal invalidity of a debtor or a son under paternal power purchasing their own pledged property, and sets out the creditor's obligation to restore the pledge upon payment, including the effect on any sub-pledges.

[PAPINIANUS libro tertio responsorum. ] §13.7.40.prDebitor a creditore pignus quod dedit frustra emit, cum rei suae nulla emptio sit: nec si minoris emerit et pignus petat aut dominum uindicet, ei non totum debitum offerenti creditor possessionem restituere cogetur.
[PAPINIANUS, in his Third Book of Responses.] A debtor purchases to no purpose from a creditor the pledge which he gave, since there is no purchase of one's own property; nor, even if he should purchase it for less and claim the pledge or assert his ownership, will the creditor be compelled to restore possession to him if he does not offer the whole debt.
§13.7.40.1Debitoris filius, qui manet in patris potestate, frustra pignus a creditore patris peculiaribus nummis comparat: et ideo si patronus debitoris contra tabulas eius possessionem acceperit, dominii partem optinebit: nam pecunia, quam filius ex re patris in pretium dedit, pignus liberatur.
A son of a debtor, who remains under his father's power, purchases the pledge to no purpose from his father's creditor with money from his peculium; and therefore, if the patron of the debtor obtains possession of his estate contrary to the provisions of the will, he will obtain a part of the ownership; for the pledge is released by the money which the son gave as the price out of the father's property.
§13.7.40.2Soluta pecunia creditor possessionem pignoris, quae corporalis apud eum fuit, restituere debet nec quicquam amplius praestare cogitur.
When the money has been paid, the creditor must restore the physical possession of the pledge which was with him, and is not compelled to perform anything further.
itaque si medio tempore pignus creditor pignori dederit, domino soluente pecuniam quam debuit secundi pignoris neque persecutio dabitur neque retentio relinquetur.
Therefore, if in the meantime the creditor has given the pledge as a pledge to another, when the owner pays the money which he owed, neither a right of action for the second pledge will be granted, nor will a right of retention be left.

Notes

  1. 13.7.40.prrei suae — Objective genitive modifying emptio. It expresses the general Roman law principle that there can be no valid purchase of one's own property (suae rei emptio).
  2. 13.7.40.prei non totum debitum offerenti — The present participle offerenti modifies the dative pronoun ei (the indirect object of restituere). The overall structure indicates that the creditor is not compelled to restore the property to him (the debtor) as long as he does not offer (offerenti) the entire amount of the debt.
  3. 13.7.40.1peculiaribus nummis — Ablative of means, referring to the money from the son's peculium. Since the peculium of a son under paternal power legally belonged to his father, a purchase using these funds amounted to buying one's own property with one's own money, and was therefore void.
  4. 13.7.40.2domino soluente — Ablative absolute with the present participle soluente (subject domino), meaning 'when the owner (of the original pledge) pays (his debt).'
  5. 13.7.40.2secundi pignoris — Genitive of relation, modifying both persecutio and retentio. It specifies the scope of the double negation: 'neither a right of action nor a right of retention regarding the second pledge shall be allowed.'

Cite this passage

Justinian I, The Digest of Justinian §13.7.40.pr-13.7.40.2. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:13.7.40.pr-13.7.40.2

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