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Justinian I · The Digest of Justinian §17.2.68.pr-17.2.68.1

Disposal of Partnership Share and Fraudulent Insolvency

Passage 2572 of 9271 · Latin

Summary

This section states that a partner can only alienate their own share, and defines fraudulent acts that reduce one's capacity to perform as applying only to the active squandering of assets, not to the passive failure to acquire them.

[GAIUS libro decimo ad edictum prouinciale. ] §17.2.68.prNemo ex sociis plus parte sua potest alienare, etsi totorum bonorum socii sint.
[GAIUS in the tenth book on the provincial edict.] None of the partners can alienate more than his own share, even if they are partners of all goods.
§17.2.68.1Illud quaeritur, utrum is demum facere uidetur quo minus facere possit, qui erogat bona sua in fraudem futurae actionis, an et qui occasione adquirendi non utitur.
The question is raised whether only he is deemed to act so as to be less able to perform, who squanders his property in fraud of a future action, or also he who does not use an opportunity of acquiring.
sed uerius est de eo sentire proconsulem, qui erogat bona sua, idque ex interdictis colligere possumus, in quibus ita est: 'quod dolo fecisti, ut desineres possidere. '
But it is more correct to hold that the proconsul means him who squanders his property, and we can infer this from the interdicts, in which it is stated: "what you have done with malice, so that you should cease to possess."

Notes

  1. 17.2.68.1facere uidetur quo minus facere possit — This expression refers back to the limitation of a partner's liability "to the extent of what he can perform" (beneficium competentiae) in the previous fragment (17.2.67.3). It describes actions by which a debtor fraudulently reduces their own solvency, thereby decreasing the maximum amount they are able to pay.
  2. 17.2.68.1de eo sentire proconsulem — An accusative with infinitive construction where `proconsulem` (proconsul) is the subject of `sentire` (to mean, intend), which is complemented by `de eo ... qui erogat bona sua` (about him who squanders his property). Gaius is interpreting the intention of the proconsul who drafted the provincial edict.
  3. 17.2.68.1quod dolo fecisti, ut desineres possidere — A quotation of a standard formula used in interdicts concerning possession. It imposes liability for an active choice to stop possessing something with malicious intent (dolo) to avoid litigation. By analogy, it proves that only active reduction of assets (squandering), rather than passive omission (failing to acquire assets), constitutes fraudulent behavior here.

Cite this passage

Justinian I, The Digest of Justinian §17.2.68.pr-17.2.68.1. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:17.2.68.pr-17.2.68.1

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