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Justinian I · The Digest of Justinian §16.1.29.pr-16.1.29.1

Substitution of a Wife as Debtor and Evasion of the SC

Passage 2375 of 9271 · Latin

Summary

Paulus rules on a case where a creditor, fearing the heirs' insolvency, contracted with the deceased's wife, deciding that the senatusconsult applies to release her and her pledges, though the praetor may reasonably grant the creditor actions against the principal debtors and the assets pledged to her. He also declares that acts devised in fraud of the senatusconsult are invalid.

[PAULUS libro sexto decimo responsorum. ] §16.1.29.prQuidam uoluit heredibus Lucii Titii mutuam pecuniam dare et cum eis contrahere: sed quoniam facultates eorum suspectas habuit, magis uoluit uxori testatoris dare pecuniam et ab ea pignus accipere: mulier eandem pecuniam dedit heredibus et ab his pignus accepit: quaero an intercessisse uideatur et an pignora, quae ipsa accepit, teneantur creditori.
[PAULUS libro sexto decimo responsorum.] A certain person wished to give a loan to the heirs of Lucius Titius and to contract with them; but since he suspected their financial means, he preferred to give the money to the testator's wife and to receive a pledge from her. The woman gave the same money to the heirs and received a pledge from them. I ask whether she should be deemed to have interposed, and whether the pledges which she herself received are held for the creditor.
Paulus respondit, si creditor, cum contrahere uellet cum heredibus Lucii Titii, euitatis his magis mulierem ream elegit, et in ipsius persona senatus consulto, quod de intercessionibus factum est, locum esse et pignora ab ea data non teneri.
Paulus replied that if the creditor, though wishing to contract with the heirs of Lucius Titius, avoided them and preferred to choose the woman as the debtor, there is room in her person for the senatusconsult which was enacted concerning interpositions, and the pledges given by her are not held.
eas autem res, quas mulier ab his, pro quibus intercedebat, pignori accepit, creditori mulieris obligatas non esse.
Moreover, those things which the woman received as a pledge from those for whom she interposed are not obligated to the creditor of the woman.
sed non sine ratione praetorem facturum, si non tantum in persona subducta muliere in principales debitores dederit actionem, sed etiam in res, quae mulieri obligatae sunt.
However, the praetor would act not without reason if, once the woman is withdrawn from liability, he should grant an action not only against the principal debtors, but also against the things which are pledged to the woman.
§16.1.29.1Paulus respondit ea, quae in fraudem senatus consulti, quod de intercessione feminarum factum est, excogitata probari possunt, rata haberi non oportere.
Paulus replied that those things which can be proven to have been devised in fraud of the senatusconsult enacted concerning the interposition of women ought not to be held valid.

Notes

  1. 16.1.29.prream — Feminine accusative singular of the noun reus (defendant, party). Here it does not mean 'defendant' in a lawsuit, but rather the direct 'party' or 'debtor (principal debtor)' in the contract.
  2. 16.1.29.prsubducta muliere — Ablative absolute consisting of the noun mulier and the perfect participle subducta ('the woman having been withdrawn'). It refers to the situation where the woman is exempted from liability by the application of the senatusconsult. The praetor, while withdrawing her from liability, provides remedial actions against the principal debtors for the creditor's protection.
  3. 16.1.29.1in fraudem — 'In fraud of' or 'to circumvent'. It refers to an act of evasion (fraus legi) where a legal prohibition (here, the prohibition of women's interposition under the senatusconsult) is substantially bypassed through clever indirect means while formally complying with the letter of the law.

Cite this passage

Justinian I, The Digest of Justinian §16.1.29.pr-16.1.29.1. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:16.1.29.pr-16.1.29.1

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