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Justinian I · The Digest of Justinian §18.3.2.pr

Forfeiture Clause for Seller's Benefit and Risk of Loss

Passage 2691 of 9271 · Latin

Summary

Discusses that the forfeiture clause (resolving the sale if payment is not made on time) is established for the benefit of the seller, and the buyer cannot exploit it to escape his own risk of loss.

[POMPONIUS libro trigensimo quinto ad Sabinum. ] §18.3.2.prCum uenditor fundi in lege ita cauerit: 'si ad diem pecunia soluta non sit, ut fundus inemptus sit', ita accipitur inemptus esse fundus, si uenditor inemptum eum esse uelit, quia id uenditoris causa caueretur: nam si aliter acciperetur, exusta uilla in potestate emptoris futurum, ut non dando pecuniam inemptum faceret fundum, qui eius periculo fuisset.
[POMPONIUS, On Sabinus, book 35.] When the seller of land has provided in a clause: 'if the money is not paid by the day, let the land be unbought,' it is so understood that the land is unbought only if the seller wishes it to be unbought, because this was provided for the sake of the seller; for if it were understood otherwise, then, if the villa were burned down, it would be in the power of the buyer, by not paying the money, to make the land unbought, which had been at his risk.

Notes

  1. §18.3.2.prfuturum — This is a future infinitive with 'esse' omitted (futurum esse), acting as the apodosis in indirect speech (oratio obliqua) dependent on the general context of interpretation ('accipitur'). The condition is 'si aliter acciperetur' (subjunctive imperfect), which represents a contrary-to-fact conditional sentence transferred into indirect speech.
  2. §18.3.2.prqui eius periculo fuisset — The subjunctive pluperfect 'fuisset' in the relative clause is due to its subordination within indirect speech (subjunctive of oblique relation), and also carries a subjunctive/contrary-to-fact nuance ('which would have been at his risk'). 'eius' refers to the buyer (emptoris), and 'periculo' is an ablative indicating attribution of risk.

Cite this passage

Justinian I, The Digest of Justinian §18.3.2.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:18.3.2.pr

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