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Justinian I · The Digest of Justinian §18.1.81.pr-18.1.81.1

Conditional Sale to a Surety and Personal Obligations

Passage 2669 of 9271 · Latin

Summary

In §18.1.81.pr, the validity of a conditional sale is discussed where a mortgaged property is considered purchased if the surety pays the debt, and in §18.1.81.1, whether a buyer inherits a personal obligation to provide grain from the purchased land under an "as is" clause is addressed.

[SCAEUOLA libro septimo digestorum. ] §18.1.81.prTitius cum mutuos acciperet tot aureos sub usuris, dedit pignori siue hypothecae praedia et fideiussorem Lucium, cui promisit intra triennium proximum se eum liberaturum: quod si id non fecerit die supra scripta et soluerit debitum fideiussor creditori, iussi praedia empta esse, quae creditoribus obligauerat. quaero, cum non sit liberatus Lucius fideiussor a Titio, an, si soluerit creditori, empta haberet supra scripta praedia.
[SCAEUOLA, in the seventh book of his Digests.] When Titius received a certain number of gold coins as a loan at interest, he gave lands as a pledge or mortgage, and Lucius as a surety, to whom he promised that he would release him within the next three years: "But if he should not do this by the above-written date, and the surety should pay the debt to the creditor, I have ordered that the lands which he had pledged to the creditors be considered as purchased." It was asked, when the surety Lucius has not been released by Titius, whether, if he should pay the creditor, he would hold the above-written lands as purchased.
respondit, si non ut in causam obligationis, sed ut empta habeat, sub condicione emptio facta est et contractam esse obligationem.
He answered that, if he holds them not as by way of obligation, but as purchased, the sale was made under a condition and the obligation was contracted.
§18.1.81.1Lucius Titius promisit de fundo suo centum milia modiorum frumenti annua praestare praediis Gaii Seii: postea Lucius Titius uendidit fundum additis uerbis his: 'quo iure quaque condicione ea praedia Lucii Titii hodie sunt, ita ueneunt itaque habebuntur': quaero, an emptor Gaio Seio ad praestationem frumenti sit obnoxius.
Lucius Titius promised to provide from his land one hundred thousand modii of grain annually to the lands of Gaius Seius; afterwards, Lucius Titius sold the land, adding these words: "With whatever right and in whatever condition those lands of Lucius Titius are today, so they are sold and so they shall be held." It was asked whether the buyer is liable to Gaius Seius for the provision of the grain.
respondit emptorem Gaio Seio secundum ea quae proponerentur obligatum non esse.
He answered that according to the facts proposed, the buyer was not obligated to Gaius Seius.

Notes

  1. §18.1.81.priussi praedia empta esse — The first-person perfect iussi ("I have ordered/directed") is a direct quotation of a contractual clause added by Titius when concluding the loan and suretyship agreement. The accusative with infinitive clause praedia empta esse represents the content of this instruction ("that the lands be considered as purchased").
  2. §18.1.81.prsi non ut in causam obligationis, sed ut empta habeat — The subject of the subjunctive present habeat is the surety (Lucius) mentioned in the question. in causam obligationis ("by way of obligation") refers to holding the property as security, while ut empta ("as purchased") refers to holding it under a contract of sale. The contrast between these two legal grounds of possession is introduced by si non... sed... .
  3. §18.1.81.1quo iure quaque condicione ea praedia Lucii Titii hodie sunt, ita ueneunt — A proleptic correlative structure typical of Roman legal and contractual formulas. The relative adjectives quo and quaque are placed first with their nouns iure and condicione, correlating with the subsequent demonstrative adverb ita ("so/in that manner"). It means "in whatever right and condition the lands of Lucius Titius are today, in that manner they are sold," forming an "as is" sale clause.

Cite this passage

Justinian I, The Digest of Justinian §18.1.81.pr-18.1.81.1. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:18.1.81.pr-18.1.81.1

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