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Justinian I · The Digest of Justinian §17.1.54.pr-17.1.54.1

Mandates to Purchase Oneself and Redress for Enslaved Kin

Passage 2494 of 9271 · Latin

Summary

The fragment discusses the invalidity of a slave's mandate to buy himself, the master's remedies based on familial affection when such a mandate is for manumission, the restriction on the action concerning peculium to prevent improper escape, and the availability of the contrary action of mandate for a free person serving in good faith who mandates his own ransom.

[IDEM libro uicesimo septimo quaestionum. ] §17.1.54.prCum seruus extero se mandat emendum, nullum mandatum est.
[THE SAME, from the twenty-seventh book of Questions.] When a slave mandates a stranger to buy him, the mandate is void.
sed si in hoc mandatum intercessit ut seruus manumitteretur nec manumiserit, et pretium consequetur dominus ut uenditor et affectus ratione mandati agetur: finge filium naturalem uel fratrem esse (placuit enim prudentioribus affectus rationem in bonae fidei iudiciis habendam).
But if a mandate was interposed to the effect that the slave should be manumitted, and the buyer has not manumitted him, the master will both obtain the price as seller and sue on the grounds of the mandate on account of affection: imagine that the slave is a natural son or brother (for it pleased the more learned that account of affection should be taken in actions of good faith).
quod si de suis nummis emptor pretium dederit (neque enim aliter iudicio uenditi liberari potest), quaeri solet, an utiliter de peculio agere possit.
But if the buyer paid the price out of his own money (for otherwise he cannot be released from the action on sale), it is usually asked whether he can effectively sue concerning the peculium.
et uerius et utilius uidetur praetorem de huiusmodi contractibus seruorum non cogitasse, quo se ipsi mala ratione dominis auferrent.
And it seems both truer and more useful that the praetor did not think of such contracts of slaves, whereby they might by an improper means withdraw themselves from their masters.
§17.1.54.1Si liber homo bona fide seruiens redimi se mandauerit idque nummis emptoris factum sit, contraria mandati actione agi posse constat, ut tamen actiones praestentur, quas habet emptor aduersus uenditorem: finge non manumississe liberam personam emptorem.
If a free man serving in good faith as a slave has mandated that he be ransomed, and this has been done with the buyer's money, it is established that he can sue by the contrary action of mandate, provided, however, that the actions which the buyer has against the seller are ceded: imagine that the buyer did not manumit the free person.

Notes

  1. §17.1.54.praffectus ratione — Based on the consideration of affection (natural family ties, etc.). In Roman law, not only pecuniary value but also subjective or emotional value (affectus) arising from familial relationships (e.g., father and son, brothers) could be taken into account in actions of good faith (bonae fidei iudicia).
  2. §17.1.54.prde peculio agere — To bring an action concerning the peculium (actio de peculio) against the master to the extent of the slave's separate property. Here, it is questioned whether a third party who bought the slave with his own money can bring this action against the master to recover the price, but it is concluded that the praetor did not allow this, to prevent slaves from improperly removing themselves from their masters.
  3. §17.1.54.1ut tamen actiones praestentur — A restrictive ut clause (with tamen) taking the subjunctive (praestentur), meaning "provided, however, that the actions are provided (ceded)." Here, it conditions the availability of the contrary action of mandate on the buyer's ceding to the mandator (the free person to be ransomed) the actions he has against the seller.

Cite this passage

Justinian I, The Digest of Justinian §17.1.54.pr-17.1.54.1. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:17.1.54.pr-17.1.54.1

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