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Justinian I · The Digest of Justinian §16.1.7.pr

Replication of Fraud Against Guarantor and Action for Management

Passage 2353 of 9271 · Latin

Summary

It is explained that while the creditor can assert a replication of fraud against the guarantor, they have no such replication against the woman, and that because the mandate is voided, the guarantor should be granted an action for business management against the defender.

[PAPINIANUS libro nono quaestionum. ] §16.1.7.prQuamquam igitur fideiussor doli replicatione posita defensionem exceptionis amittit, nullam tamen replicationem aduersus mulierem habebit, quia facti non potest ignorationem praetendere.
[PAPINIAN, Questions, book 9] Although, therefore, the guarantor loses the defense of the exception once a replication of fraud has been interposed [by the creditor], yet [the creditor] will have no replication against the woman, because he cannot pretend ignorance of the fact.
sed non erit iniquum dari negotiorum gestorum actionem in defensorem, quia mandati causa per senatus consultum constituitur irrita et pecunia fideiussoris liberatur.
But it will not be inequitable for an action for business management to be granted [to the guarantor] against the defender, since the basis of the mandate is rendered void by the senatusconsultum, and [the defender] is released by the guarantor's money.

Notes

  1. §16.1.7.prhabebit — The implied subject of the verb `habebit` is not the immediately preceding `fideiussor` (guarantor), but the creditor ("the person who accepted them as guarantors", `qui accepit eos fideiussores`) mentioned at the end of the previous section (16.1.6.pr). This indicates that while the creditor can counter the guarantor with a replication of fraud (`replicatio doli`) based on the guarantor's knowledge of the mother's mandate, they cannot raise any replication against the woman (the mother) because they cannot claim ignorance of the fact (`ignorantia facti`) of her personal intervention.
  2. §16.1.7.prdari — The implied dative (recipient) of the passive infinitive `dari` is the guarantor (`fideiussor`). Because the mandate relationship with the mother is rendered void (`irrita`) by the operation of the senatusconsultum, the guarantor loses the contrary action of mandate (`actio mandati contraria`) against her. However, since the guarantor's payment ultimately discharged the defender's debt, equity (`aequitas`) dictates that the guarantor be granted an action for business management (`actio negotiorum gestorum`) against the defender.
  3. §16.1.7.prliberatur — The subject of the passive verb `liberatur` is omitted in the Latin text but refers to the defender (`defensor`). It shows the causal relation where the defender is released from his own liability by the expenditure of the guarantor's money (`pecunia fideiussoris`), which serves as the substantial ground (preventing unjust enrichment or uncompensated relief from debt) for granting the aforementioned action for business management.

Cite this passage

Justinian I, The Digest of Justinian §16.1.7.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:16.1.7.pr

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