Humanitext Reader

Justinian I · The Digest of Justinian §18.5.5.pr-18.5.5.2

Effect of Bare Consent and Risk on Loss of Subject Matter

Passage 2728 of 9271 · Latin

Summary

Explains that release in a sale operates by the power of agreement, that a sale can be dissolved by bare agreement before performance, and that a different rule applies if the slave dies, based on the allocation of risk.

[IULIANUS libro quinto decimo digestorum. ] §18.5.5.prCum emptor uenditori uel emptori uenditor acceptum faciat, uoluntas utriusque ostenditur id agentis, ut a negotio discedatur et perinde habeatur, ac si conuenisset inter eos, ut neuter ab altero quicquam peteret, sed ut euidentius appareat, acceptilatio in hac causa non sua natura, sed potestate conuentionis ualet.
[JULIANUS, in Book 15 of his Digests.] When a buyer releases the seller, or a seller releases the buyer, the intention of both parties is shown as aiming at this, namely, that the transaction be departed from and that it be treated just as if it had been agreed between them that neither should demand anything from the other; but to make it more clearly apparent, acceptilatio in this case is valid not by its own nature, but by the power of the agreement.
§18.5.5.1Emptio nuda conuentione dissoluitur, si res secuta non fuerit.
A purchase is dissolved by bare agreement, if performance has not followed.
§18.5.5.2Mortuo autem homine perinde habenda est uenditio ac si traditus fuisset, utpote cum uenditor liberetur et emptori homo pereat: quare nisi iusta conuentio interuenerit, actiones ex empto et uendito manebunt.
But if the slave dies, the sale must be treated just as if he had been delivered, since the seller is released and the slave perishes to the detriment of the buyer; therefore, unless a valid agreement intervenes, the actions on purchase and sale will remain.

Notes

  1. §18.5.5.prid agentis — agentis is the genitive singular of the present active participle agens, agreeing with and modifying the preceding pronoun utriusque. The phrase id agere ut... is an idiomatic expression meaning 'to aim at...' or 'to act with the purpose of...', introducing the subordinate ut-clause (ut a negotio discedatur...).
  2. §18.5.5.1res secuta non fuerit — secuta fuerit is the third-person singular perfect passive (deponent) of the verb sequor (to follow, accompany). Literally 'if the thing has not followed,' it refers to a state where the performance of the contract (such as delivery of the object or payment of the price) has not yet taken place after the conclusion of the sales contract.
  3. §18.5.5.2emptori — Dative of disadvantage (dativus incommodi), meaning 'to the detriment of the buyer.' It indicates that the risk (periculum) of the death of the specific slave falls on the buyer.

Cite this passage

Justinian I, The Digest of Justinian §18.5.5.pr-18.5.5.2. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:18.5.5.pr-18.5.5.2

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