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Justinian I · The Digest of Justinian §17.1.62.pr-17.1.62.1

Agreement by Letter to Share Estate and Mandate for Suretyship

Passage 2502 of 9271 · Latin

Summary

This text discusses whether a written declaration to share an inheritance is legally binding without a subsequent stipulation, and whether a mandatary is liable under the action of mandate if they execute a guarantee differently than instructed.

[SCAEUOLA libro sexto digestorum. ] §17.1.62.prCum controuersia esset de hereditate defunctae inter scriptum heredem et patruum Maeuium et amitas, Maeuius litteris ad sorores suas factis declarauit commune futurum, quidquid ad eum ex euentu litis hereditariae peruenisset, neque stipulatio litteras secuta est: quaesitum est, cum transegerit idem Maeuius cum scripto herede ita, ut praedia et aliae quaedam res ex ea transactione ad eum peruenirent, an ex litteris suis possit a sororibus conueniri.
[SCAEUOLA, from the sixth book of the Digests.] When there was a dispute concerning the inheritance of a deceased woman between the appointed heir, the paternal uncle Maeuius, and the paternal aunts, Maeuius declared in a letter written to his sisters that whatever should come to him from the outcome of the inheritance lawsuit would be held in common; however, no stipulation followed the letter. The question was raised, when the same Maeuius settled with the appointed heir in such a way that land and certain other things came to him from that settlement, whether he could be sued by his sisters on the basis of his letter.
respondit posse.
He answered that he could.
§17.1.62.1Mandaui in haec uerba: 'Lucius Titius Gaio suo salutem.
I mandated in these words: 'Lucius Titius to his dear Gaius, greeting.
Peto et mando tibi, ut fidem dicas pro Publio Maeuiio apud Sempronium: quaeque a Publio soluta tibi non fuerint, me repraesentaturum hac epistula manu mea scripta notum tibi facio. ' quaero, si non fideiussisset, sed mandasset creditori et alias egisset quam quod ei mandatum esset, an actione mandati teneretur.
I request and mandate to you that you act as surety for Publius Maeuius before Sempronius; and whatever is not paid to you by Publius, I make known to you by this letter, written by my hand, that I will pay in full.' I ask, if he did not act as surety but mandated to the creditor, and did otherwise than what had been mandated to him, whether he would be bound by the action of mandate.
respondit teneri.
He answered that he would be bound.

Notes

  1. §17.1.62.prcommune futurum — An accusative with infinitive construction with the ellipsis of esse (commune futurum esse), acting as the object of the main verb declarauit. Its grammatical subject is the following relative clause, quidquid...peruenisset.
  2. §17.1.62.1si non fideiussisset, sed mandasset creditori — This refers to a situation where the mandatary (Gaius), instead of personally acting as a surety (fideiussor) as instructed by the mandator (Titius), attempted to execute the mandate by instructing the creditor to extend credit (a mandatum qualificatum). The issue is whether this alteration of the performance method (alias egisset) makes him liable under the action of mandate (actio mandati).

Cite this passage

Justinian I, The Digest of Justinian §17.1.62.pr-17.1.62.1. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:17.1.62.pr-17.1.62.1

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