Humanitext Reader

Justinian I · The Digest of Justinian §17.1.32.pr

Inheritance upon Indemnity and Similarity to Guarantees

Passage 2472 of 9271 · Latin

Summary

Julian discusses the availability of the action of mandate when entering an inheritance on the condition of indemnity, and compares the nature of mandate with that of guarantee.

[IDEM libro tertio ad Urseium Ferocem. ] §17.1.32.prSi hereditatem aliter aditurus non essem quam cautum mihi fuisset damnum praestari et hoc mandatum intercessisset, fore mandati actionem existimo.
[THE SAME in the third book of his Epitome of Urseius Ferox.] If I were not about to enter upon an inheritance unless security had been given to me that any loss would be made good, and this mandate had intervened, I think that an action of mandate will lie.
si quis autem mandauerit alicui, ne legatum a se repellat, longe ei dissimile esse: nam legatum adquisitum numquam illi damno esse potuit: hereditas interdum damnosa est.
But if anyone should commission someone not to reject a legacy left to him, the case is very different; for an acquired legacy can never be a source of loss to him, whereas an inheritance is sometimes disadvantageous.
et in summa quicumque contractus tales sunt, ut quicumque eorum nomine fideiussor obligari posset, et mandati obligationem consistere puto: neque enim multo referre, praesens quis interrogatus fideiubeat an absens uel praesens mandet.
And in short, in the case of any contracts of such a nature that a guarantor could be bound on their account, I think that an obligation of mandate also is established; for it makes no great difference whether someone, being present and questioned, acts as guarantor, or whether, being absent or present, he gives a mandate.
praeterea uolgo animaduertere licet mandatu creditorum hereditates suspectas adiri, quos mandati iudicio teneri procul dubio est.
Furthermore, it may commonly be observed that suspect inheritances are entered upon at the mandate of creditors, and there is no doubt that they are bound by the action of mandate.

Notes

  1. §17.1.32.praliter aditurus non essem quam — The conjunctive phrase aliter ... quam (otherwise than / unless) forms a contrary-to-fact conditional construction (with aditurus non essem as apodosis and cautum fuisset as protasis), indicating that the party would not have entered upon the inheritance unless security for the loss had been guaranteed.
  2. §17.1.32.prlonge ei dissimile esse — An infinitive clause of indirect speech governed by the main verb existimo (I think). It points out that a mandate not to reject a legacy is legally very different in nature from entering an inheritance under indemnity.
  3. §17.1.32.prut quicumque eorum nomine fideiussor obligari posset — A consecutive clause (ut + subjunctive posset) introduced by the antecedent tales (such). It refers to any contract of such a nature that a guarantor (fideiussor) could be bound (obligari) on its account.
  4. §17.1.32.prneque enim multo referre — The infinitive of the impersonal verb refert (it matters, it makes a difference) in indirect speech depending on puto (I think). Accompanied by the ablative of degree multo, it expresses that it makes no great difference whether one acts as a guarantor in person or commissions it by mandate.

Cite this passage

Justinian I, The Digest of Justinian §17.1.32.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:17.1.32.pr

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