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Justinian I · The Digest of Justinian §16.2.9.pr-16.2.9.1

Set-Off in Partnership Actions with Sons or Slaves

Passage 2387 of 9271 · Latin

Summary

The passage discusses the application of set-off in actions arising from a partnership contracted with a son-in-power or a slave, and the conditions under which a son can set off what is owed to his father.

[PAULUS libro trigensimo secundo ad edictum. ] §16.2.9.prSi cum filio familias aut seruo contracta sit societas et agat dominus uel pater, solidum per compensationem seruamus, quamuis, si ageremus, dumtaxat de peculio praestaretur.
[PAULUS, On the Edict, Book XXXII.] If a partnership has been contracted with a son-in-power or a slave, and the master or father brings an action, we preserve the whole sum through a set-off, even though, if we were to bring an action, liability would be met only to the extent of the peculium.
§16.2.9.1Sed si cum filio familias agatur, an quae patri debeantur filius compensare possit, quaeritur: et magis est admittendum, quia unus contractus est, sed cum condicione, ut caueat patrem suum ratum habiturum, id est non exacturum quod is compensauerit.
But if an action is brought against a son-in-power, the question is raised whether the son can set off what is owed to his father; and it is rather to be admitted, because there is one contract, but on the condition that he gives security that his father will ratify it, that is, will not exact what the son has set off.

Notes

  1. §16.2.9.prdumtaxat de peculio praestaretur — praestaretur is an impersonal passive subjunctive in the imperfect tense, meaning 'payment would be made' or 'performance would be rendered.' Combined with the conditional clause si ageremus (imperfect subjunctive), it forms a contrary-to-fact condition. This refers to the limitation of liability to the extent of the peculium in actions brought against a father or master (actio de peculio).
  2. §16.2.9.1ut caueat patrem suum ratum habiturum — caueat (present subjunctive) means 'to give security' or 'to provide a guarantee,' taking the accusative-with-infinitive clause patrem suum ratum habiturum [esse] ('that his father will ratify [it]') as its object. This establishes that as a condition for the set-off, the son must guarantee that the creditor will not face a subsequent claim from the father (who might otherwise refuse to recognize the set-off).

Cite this passage

Justinian I, The Digest of Justinian §16.2.9.pr-16.2.9.1. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:16.2.9.pr-16.2.9.1

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