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Justinian I · The Digest of Justinian §17.1.47.pr-17.1.47.1

Guarantor's Recourse via Dowry and by Usucapion

Passage 2487 of 9271 · Latin

Summary

This text explains that a guarantor whose wife promises him his guarantee-claim as dowry can sue the debtor immediately after marriage, and that a guarantor who delivered another's slave can only bring a mandate action after usucapion occurs.

[POMPONIUS libro tertio ex Plautio. ] §17.1.47.prIulianus ait, si fideiussori uxor doti promiserit, quod ei ex causa fideiussoria debeat, nuptiis secutis confestim mandati aduersus debitorem agere eum posse, quia intellegitur abesse ei pecunia eo, quod onera matrimonii sustineret.
[POMPONIUS, On Plautius, Book III.] Julian says that if a wife has promised her husband, who is a guarantor, as her dowry what is due to him on account of his guarantee, once the marriage has taken place, he can immediately bring an action of mandate against the debtor, because he is understood to be out of pocket by that amount because he has to bear the burdens of marriage.
§17.1.47.1Si is, qui pro te hominem dare fideiussit, alienum hominem stipulatori dederit, nec ipse liberatur nec te liberat et ideo mandati actionem tecum non habet.
If he who became a guarantor for you to deliver a slave has delivered a slave belonging to someone else to the stipulator, he himself is not released, nor does he release you, and therefore he does not have an action of mandate against you.
sed si stipulator eum hominem usuceperit, dicendum esse Iulianus ait liberationem contingere: eo ergo casu mandati actio post usucapionem demum tecum erit.
But if the stipulator has acquired the slave by usucapion, Julian says it must be held that a release occurs; therefore, in that case, the action of mandate will only lie against you after the usucapion.

Notes

  1. 17.1.47.prabesse ei pecunia — Meaning "to be out of pocket," signifying that he is deemed to have suffered a pecuniary loss. Even if the guarantor has not yet actually paid the guarantee, by undertaking the burdens of marriage, he is treated as having incurred an expenditure equivalent to the dowry, which justifies his right of recourse through the action of mandate.
  2. 17.1.47.preo, quod onera matrimonii sustineret — eo is an ablative of cause, followed by a clause introduced by the conjunction quod in apposition ("by the fact that..."). The subjunctive sustineret is used because the clause is subordinate to an indirect statement (Julian's opinion) dependent on the infinitive clause and intellegitur.
  3. 17.1.47.1dicendum esse Iulianus ait liberationem contingere — Two accusative-with-infinitive constructions are stacked without a conjunction. dicendum esse ("it must be held/said") serves as the object of the main verb ait, while liberationem contingere ("that a release occurs") follows as the subject/content of the impersonal passive dicendum esse.

Cite this passage

Justinian I, The Digest of Justinian §17.1.47.pr-17.1.47.1. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:17.1.47.pr-17.1.47.1

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