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Justinian I · The Digest of Justinian §14.5.7.pr

Creditor's Choice Against Heir Son and Co-Heirs After Father's Mandate

Passage 2238 of 9271 · Latin

Summary

It states that a creditor who lent money to a son upon the father's mandate can choose, after the father's death, whether to sue the son (who inherited only a tiny share) for the entire debt or the co-heirs according to their shares, and notes the limitation of the son's liability.

[SCAEUOLA libro primo responsorum. ] §14.5.7.prPater filio permisit mutuam pecuniam accipere et per epistulam creditori mandauit, ut ei crederet: filius ex minima parte patri heres exstitit.
[SCAEUOLA, Responsa, Book 1] A father permitted his son to receive a loan of money and, by a letter, mandated the creditor to lend to him; the son became heir to his father for a very small share.
respondi esse in potestate creditoris, utrum filium, cui credidisset, in solidum, an heredes, pro qua parte quisque successisset, mallet conuenire: sed filius condemnatur in quantum facere potest.
I answered that it is in the power of the creditor whether he would prefer to sue the son, to whom he had extended credit, for the whole amount, or the heirs for the share to which each succeeded; but the son is condemned only to the extent of his ability to pay.

Notes

  1. §14.5.7.prin solidum — Meaning "for the whole" or "in full," modifying "conuenire" (to sue/bring an action). It indicates demanding the entire outstanding debt from the son alone, rather than a divided portion of the debt.
  2. §14.5.7.prin quantum facere potest — Meaning "to the extent that he is able to perform/pay." The verb "facere" is used here in the legal sense of performing an obligation. This is an idiomatic expression representing the "benefit of competence" (beneficium competentiae), which limits the condemnation (condemnatio) of a debtor to their actual ability to pay, so as not to reduce them to total destitution.

Cite this passage

Justinian I, The Digest of Justinian §14.5.7.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:14.5.7.pr

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