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Justinian I · The Digest of Justinian §17.1.50.pr-17.1.50.1

Payment by a Surety's Manager and Effects of Ratification

Passage 2490 of 9271 · Latin

Summary

This passage explains that when a manager of a surety's affairs makes a beneficial payment, the surety is bound by the action on management of affairs regardless of ratification, and ratification creates an action on mandate. It also rules that the surety can recover expenses or losses from payment through the action on mandate.

[CELSUS libro trigesimo octauo digestorum. ] §17.1.50.prSi is qui negotia fideiussoris gerebat ita soluit stipulatori, ut reum fideiussoremque liberaret, idque utiliter fecit, negotiorum gestorum actione fideiussorem habet obligatum, nec refert, ratum habuit nec ne fideiussor.
If a person who was managing the affairs of a surety made payment to the stipulator in such a way as to release both the principal debtor and the surety, and did so beneficially, he holds the surety bound by the action on management of affairs, and it does not matter whether the surety ratified it or not.
sed fideiussor etiam antequam solueret procuratori pecuniam, simul ac ratum habuisset, haberet tamen mandati actionem.
But the surety, even before he pays the money to the agent, as soon as he has ratified it, would nevertheless have the action on mandate.
§17.1.50.1Siue, cum frumentum deberetur, fideiussor Africum dedit, siue quid ex necessitate soluendi plus impendit quam est pretium solutae rei, siue Stichum soluit isque decessit aut debilitate flagitioue ad nullum pretium sui redactus est, id mandati iudicio consequeretur.
Whether, when grain was owed, the surety gave Africus, or whether out of the necessity of paying he expended more than the price of the thing paid, or whether he paid Stichus and the latter died or was reduced to no value of his own by infirmity or vice, he would recover this by the action on mandate.

Notes

  1. 17.1.50.prprocuratori — Refers to the person who was managing the affairs of the surety ('is qui negotia fideiussoris gerebat'). It reflects the legal doctrine that ratification (ratihabitio) by the principal converts the unauthorized management of affairs (negotiorum gestio) into a mandate, thereby treating the manager as an agent (procurator).
  2. 17.1.50.1Africum — A proper name of a slave ('Africus'). It is presented as an example of performance in lieu of payment (aliud pro alio), where the surety gave a slave instead of the grain that was originally owed ('frumentum deberetur').
  3. 17.1.50.1consequeretur — The subject is the 'surety' (fideiussor). It means that the surety can recover the expenses incurred for the payment (such as the value of the slave given in lieu of payment) from the principal debtor by means of the action on mandate (specifically, the actio mandati contraria).

Cite this passage

Justinian I, The Digest of Justinian §17.1.50.pr-17.1.50.1. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:17.1.50.pr-17.1.50.1

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