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Justinian I · The Digest of Justinian §17.1.52.pr

Surety's Recourse for Generic Goods of Unspecified Quality

Passage 2492 of 9271 · Latin

Summary

This section explains that when a surety performs an obligation of wheat without quality specification, he can recover from the debtor only the value of the worst wheat that would suffice for the release, and any claim exceeding this is barred by the plea of fraud.

[IDEM libro primo epistularum. ] §17.1.52.prFideiussorem, si sine adiectione bonitatis tritici pro altero triticum spopondit, quodlibet triticum dando reum liberare posse existimo: a reo autem non aliud triticum repetere poterit, quam quo pessimo tritico liberare se a stipulatore licuit.
[THE SAME from the first book of Epistles] I think that if a surety has promised wheat on behalf of another without any specification of the quality of the wheat, he can release the principal debtor by giving any wheat whatsoever; however, he will not be able to recover from the debtor any other wheat than the worst wheat by which he himself could have been released from the stipulator.
itaque si paratus fuerit reus, quod dando ipse creditori liberari potuit, fideiussori dare et fideiussor id quod dederit, id est melius triticum condicet, exceptione eum doli mali summoueri existimo.
Therefore, if the debtor is ready to give to the surety what he himself could have given to the creditor to be released, and the surety claims what he gave, that is, the better wheat, I think that he (the surety) is barred by the plea of fraud.

Notes

  1. §17.1.52.prnon aliud triticum repetere poterit, quam quo pessimo tritico liberare se a stipulatore licuit — The relative pronoun 'quo' incorporates the superlative 'pessimo' and the noun 'tritico' within the relative clause. It translates literally as 'he cannot recover any other wheat than the worst wheat by which he (the debtor) was allowed to release himself from the stipulator,' indicating that the lowest quality of wheat which the creditor could not reject constitutes the limit of the surety's recovery.
  2. §17.1.52.prexceptione eum doli mali summoueri existimo — The accusative pronoun 'eum' is the subject of the passive infinitive 'summoueri' in the accusative-with-infinitive construction, referring to the surety (fideiussor) mentioned in the preceding conditional clause.

Cite this passage

Justinian I, The Digest of Justinian §17.1.52.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:17.1.52.pr

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