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Justinian I · The Digest of Justinian §17.1.53.pr

Surety on a Third Party's Mandate and Recourse

Passage 2493 of 9271 · Latin

Summary

This fragment explains how the targets of actions under the law of mandate differ depending on whether the principal debtor was present and consenting, or unwilling and ignorant, when a surety intervened on a third party's mandate.

[PAPINIANUS libro nono quaestionum. ] §17.1.53.prQui fide alterius pro alio fideiussit praesente et non recusante, utrosque obligatos habet iure mandati: quod si pro inuito uel ignorante alterutrius mandatum secutus fideiussit, eum solum conuenire potest qui mandauit, non etiam reum promittendi: nec me mouet, quod pecunia fideiussoris reus liberetur: id enim contingit et si meo mandato pro alio soluas.
[PAPINIANUS from the ninth book of Questions] He who has become a surety for another on the mandate of a third party, while that other is present and not objecting, holds both bound under the law of mandate. But if he became a surety following the mandate of one of them while the other was unwilling or ignorant, he can sue only the one who gave the mandate, and not also the principal debtor; nor does it move me that the debtor is released by the money of the surety, for this happens even if you pay for another on my mandate.

Notes

  1. §17.1.53.prfide alterius — Meaning 'by the credit (or trust) of another.' Here fides functions substantively as a mandate (mandatum), indicating a situation where the surety undertook the obligation on the mandate of a third party (alterius) rather than the debtor.
  2. §17.1.53.prpraesente et non recusante — An ablative absolute without an explicit noun. The logical subject is 'alio' (the debtor) from the preceding phrase 'pro alio', meaning 'while he (the debtor) is present and not objecting.'
  3. §17.1.53.probligatos habet — A construction of habere with the perfect passive participle (accusative). Rather than a simple periphrastic perfect tense, it expresses the maintenance of a current state: 'he holds both (the mandator and the debtor) bound under the law of mandate.'
  4. §17.1.53.prnec me mouet — Literally 'nor does it move me.' A formulaic expression used by Roman jurists to reject an opposing argument that seems plausible at first glance but is legally unsound. The following quod-clause serves as the substantive subject.

Cite this passage

Justinian I, The Digest of Justinian §17.1.53.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:17.1.53.pr

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