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Justinian I · The Digest of Justinian §13.7.42.pr

Duty to Restore Surplus from Sale of Pledge with Interest

Passage 2180 of 9271 · Latin

Summary

Papinian discusses the obligation to return the surplus from the sale of a pledge, stating that the creditor is legally compelled in a lawsuit to restore the surplus with interest and cannot escape liability by delegating the buyer as the debtor.

[PAPINIANUS libro tertio responsorum. ] §13.7.42.prCreditor iudicio, quod de pignore dato proponitur, ut superfluum pretii cum usuris restituat, iure cogitur, nec audiendus erit, si uelit emptorem delegare, cum in uenditione, quae fit ex facto, suum creditor negotium gerat.
[PAPINIANUS, in his Third Book of Opinions.] A creditor is legally compelled, in the action brought concerning a given pledge, to restore the surplus of the price with interest, and he should not be heard if he should wish to delegate the buyer, since the creditor, in the sale which takes place by his act, conducts his own business.

Notes

  1. §13.7.42.prut superfluum pretii cum usuris restituat — The ut clause functions as a noun clause (substantive clause of purpose/result) dependent on the passive verb cogitur ("is compelled to..."). superfluum pretii refers to the surplus of the price, i.e., the amount from the sale of the pledge exceeding the debt.
  2. §13.7.42.premptorem delegare — Here, delegare (to delegate) refers to the act of the creditor presenting the buyer (emptorem) as the new debtor to the original debtor for the payment of the surplus. Since the creditor conducts the sale on his own responsibility, he cannot unilaterally escape his obligation to restore the surplus through such delegation.
  3. §13.7.42.prcum ... suum creditor negotium gerat — The cum clause expresses cause ("since...") and takes the subjunctive gerat. By stating that the creditor conducts (gerere) his own business (suum... negotium), it provides the logical ground that the sale of the pledge is performed by the creditor for his own benefit (to recover his debt), and thus he must directly bear the resulting obligation to return the surplus.

Cite this passage

Justinian I, The Digest of Justinian §13.7.42.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:13.7.42.pr

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