Humanitext Reader

Justinian I · The Digest of Justinian §18.5.3.pr

Discharge of Guarantors and Stipulations by Rescission

Passage 2726 of 9271 · Latin

Summary

Paulus explains that since a sale is dissolved by contrary consent before performance, the question arises when guarantors or stipulations are involved; he agrees with Julian that the dissolution of the main sale exempts the guarantor and bars subsequent actions under stipulations through defenses.

[PAULUS libro trigensimo tertio ad edictum. ] §18.5.3.prEmptio et uenditio sicut consensu contrahitur, ita contrario consensu resoluitur, antequam fuerit res secuta: ideoque quaesitum est, si emptor fideiussorem acceperit uel uenditor stipulatus fuerit, an nuda uoluntate resoluatur obligatio.
[PAULUS, Book 33 on the Edict.] Just as purchase and sale is contracted by consent, so is it dissolved by contrary consent, before performance has followed: and therefore the question has been raised whether, if the buyer has accepted a guarantor or the seller has made a stipulation, the obligation is dissolved by mere will.
Iulianus scripsit ex empto quidem agi non posse, quia bonae fidei iudicio exceptiones pacti insunt: an autem fideiussori utilis sit exceptio, uidendum: et puto liberato reo et fideiussorem liberari.
Julian wrote that an action on the purchase indeed cannot be brought, because defenses based on an agreement are inherent in a good-faith action: but it must be considered whether the defense is available to the guarantor: and I think that once the principal debtor is released, the guarantor is also released.
item uenditorem ex stipulatu agentem exceptione summoueri oportet, idemque iuris esse, si emptor quoque rem in stipulationem deduxerit.
Likewise, the seller suing on the stipulation ought to be barred by the defense, and the same rule of law applies if the buyer also has brought the matter into a stipulation.

Notes

  1. §18.5.3.prantequam fuerit res secuta — Meaning 'before performance has followed.' This refers to the stage where the contract of sale remains completely unperformed (res integra) on both sides, i.e., before the delivery of the thing or the payment of the price.
  2. §18.5.3.prbonae fīdeī iūdiciō exceptiōnēs pactī insunt — Meaning 'defenses based on an agreement are inherent in a good-faith action.' Lawsuits arising from purchase and sale are good-faith actions (bonae fidei iudicia), in which any pact (such as an agreement not to sue) is automatically taken into account by the judge even without being explicitly inserted as an exception (exceptio) in the formula.
  3. §18.5.3.prlīberātō reō — An ablative absolute construction, meaning 'the principal debtor (reus) having been released' or 'when the principal debtor is released.' The term reus here refers to the primary party to the contract of sale, and the clause describes the accessory nature of suretyship, where the release of the principal debtor automatically releases the guarantor (fideiussor).

Cite this passage

Justinian I, The Digest of Justinian §18.5.3.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:18.5.3.pr

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