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Justinian I · The Digest of Justinian §17.1.38.pr-17.1.38.1

Release of a Pledge Given for Another Debt

Passage 2478 of 9271 · Latin

Summary

Marcellus discusses that the release of a pledge provided for another's debt should be evaluated by the judge based on the debtor's status and the parties' agreement. He also points out the similarity between this issue and a surety's right to seek release before payment.

[MARCELLUS libro singulari responsorum. ] §17.1.38.prLucius Titius Publio Maeuio filio naturali domum communem permisit non donationis causa creditori filii obligare: postea Maeuio defuncto relicta pupilla tutores eius iudicem aduersus Titium acceperunt et Titius de mutuis petitionibus: quaero, an domus pars, quam Titius obligandam filio suo accommodauit, arbitratu iudicis liberari debeat.
[MARCELLUS, On Responses, Single Book.] Lucius Titius permitted Publius Maevius, his natural son, to obligate (pledge) their common house to the son's creditor, not by way of gift. Afterwards, Maevius having died leaving a pupil (minor female ward), her tutors accepted a judge against Titius, and Titius [accepted a judge] regarding their mutual claims. I ask whether the part of the house which Titius allowed to be obligated for his son ought to be released by the judgment of the judge.
Marcellus respondit, an et quando debeat liberari, ex persona debitoris itemque ex eo quod inter contrahentes actum esset ac tempore, quo res de qua quaereretur obligata fuisset, iudicem aestimaturum:
Marcellus responded that whether and when it ought to be released, the judge would estimate from the person of the debtor, and likewise from what had been agreed between the contracting parties, and the time during which the property in question had been obligated.
§17.1.38.1est enim earum specierum iudicialis quaestio, per quam res expediatur, non absimilis illa, quae frequentissime agitari solet, fideiussor an et prius quam soluat agere possit, ut liberetur.
For the judicial question of these cases, through which the matter may be settled, is not unlike that which is very frequently debated: whether a surety can bring an action even before he pays, in order that he may be released.
nec tamen semper exspectandum est, ut soluat aut iudicio accepto condemnetur, si diu in solutione reus cessabit aut certe bona sua dissipabit, praesertim si domi pecuniam fideiussor non habebit, qua numerata creditori mandati actione reum conueniat.
Nor, however, must it always be expected that he should pay or be condemned after accepting a trial, if the principal debtor delays in payment for a long time or indeed dissipates his assets, especially if the surety does not have money at hand, by the payment of which to the creditor he might sue the principal debtor by an action on mandate.

Notes

  1. §17.1.38.pret Titius de mutuis petitionibus — Ellipsis of the predicate. The phrase `iudicem accepit` is understood from the preceding clause `tutores eius iudicem aduersus Titium acceperunt`, indicating that Titius also accepted a judge (meaning the joinder of issue) regarding their mutual claims.
  2. §17.1.38.probligandam — A gerundive (future passive participle) modifying `domus pars` (part of the house) expressing purpose ("to be obligated/pledged"). It is used in combination with the verb `accommodauit` to indicate that Titius made his share of the house available for his son to pledge.
  3. §17.1.38.1qua numerata creditori mandati actione reum conueniat — `qua` is a relative pronoun in the ablative singular feminine referring to `pecuniam`, and `qua numerata` is an ablative absolute ("by the payment of which"). The subjunctive `conueniat` in the relative clause characterizes the antecedent, expressing the potential or capacity ("money with which he might sue the principal debtor").

Cite this passage

Justinian I, The Digest of Justinian §17.1.38.pr-17.1.38.1. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:17.1.38.pr-17.1.38.1

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