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Justinian I · The Digest of Justinian §16.2.4.pr

Surety Liability Reduced by Principal Debtor Set-Off

Passage 2382 of 9271 · Latin

Summary

This section explains that if a principal debtor can retain an amount through set-off, the surety's liability is automatically reduced by that amount by operation of law, drawing an analogy with the invalidity of demanding the full amount from the principal debtor.

[PAULUS libro tertio ad Sabinum. ] §16.2.4.prUerum est, quod et Neratio placebat et Pomponius ait, ipso iure eo minus fideiussorem ex omni contractu debere, quod ex compensatione reus retinere potest: sicut enim, cum totum peto a reo, male peto, ita et fideiussor non tenetur ipso iure in maiorem quantitatem quam reus condemnari potest.
[PAULUS, On Sabinus, Book III.] It is true, as was both pleasing to Neratius and Pomponius says, that by operation of law a surety owes so much less on any contract by the amount which the principal debtor can retain by way of set-off; for just as, when I demand the whole amount from the principal debtor, I make a bad claim, so also the surety is not liable by operation of law for a greater amount than that for which the principal debtor can be condemned.

Notes

  1. §16.2.4.preo minus ... quod — The ablative of measure of difference eo (by so much) and the relative pronoun quod (what / which) in the accusative neuter singular function correlatively, meaning "owes less by that amount which the principal debtor can retain through set-off."
  2. §16.2.4.prdebere — An infinitive in the accusative and infinitive (A.C.I.) construction, with fideiussorem as its subject accusative. It functions under the indirect speech introduced by Pomponius ait ("Pomponius says"), and the entire structure is contained within the quod-clause which serves as the subject of Uerum est ("It is true that...").
  3. §16.2.4.prmale peto — A technical legal term in Roman law, indicating that the plaintiff is making an improper or unlawful claim (specifically, a case of excessive claim or plus petitio), which is procedurally or substantively defective.

Cite this passage

Justinian I, The Digest of Justinian §16.2.4.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:16.2.4.pr

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