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Justinian I · The Digest of Justinian §18.5.7.pr-18.5.7.1

Effects of Repeated Purchases and Contracts by Wards

Passage 2730 of 9271 · Latin

Summary

The author discusses the legal effect of repurchasing conditionally what was already bought unconditionally, and the consequences when a ward enters into subsequent transactions or agreements to rescind with or without the tutor's authorization.

[IDEM libro quinto quaestionum. ] §18.5.7.prSi id quod pure emi sub condicione rursus emam, nihil agitur posteriore emptione.
[The SAME, in Book 5 of Questions.] If I buy again under a condition that which I bought unconditionally, nothing is achieved by the subsequent purchase.
§18.5.7.1Si pupilli persona interuenit, qui ante sine tutoris auctoritate, deinde tutore auctore emit, quamuis uenditor iam ei obligatus fuit, tamen quia pupillus non tenebatur, renouata uenditio efficit, ut inuicem obligati sint: quod si ante tutoris auctoritas interuenerit, deinde sine tutore auctore emit, nihil actum est posteriore emptione.
If a ward is involved, who previously bought without his tutor's authorization, and then bought with his tutor's authorization, although the seller was already bound to him, yet because the ward was not bound, the renewed sale has the effect that they are mutually bound. But if the tutor's authorization intervened beforehand, and then he bought without his tutor's authorization, nothing is achieved by the subsequent purchase.
idem potest quaeri, si sine tutoris auctoritate pactus fuerit, ut discedatur ab emptione: an proinde sit, atque si ab initio sine tutoris auctoritate emisset, ut scilicet ipse non teneatur, sed agente eo retentiones competant.
The same question can be raised if, without his tutor's authorization, he agreed to withdraw from the sale: whether it should be treated just as if he had bought without his tutor's authorization from the beginning, so that, of course, he himself is not bound, but when he brings an action, retentions are available to the other party.
sed nec illud sine ratione dicetur, quoniam initio recte emptio sit contracta, uix bonae fidei conuenire eo pacto stari, quod alteri captiosum sit, et maxime, si iusto errore sit deceptus.
However, it will not be said without reason that, since the sale was legally contracted at the beginning, it is hardly consistent with good faith to abide by an agreement that is disadvantageous to the other party, especially if he was deceived by a justifiable error.

Notes

  1. 18.5.7.1stari — An impersonal passive infinitive of the intransitive verb stare (to stand by, abide by), taking the preceding ablative eo pacto as its complement. Meaning 'to abide by that agreement', it forms the subject infinitive clause dependent on the impersonal expression uix bonae fidei conuenire (it is hardly consistent with good faith).
  2. 18.5.7.1retentiones competant — competant is the third-person plural present subjunctive of competere. In Roman law, retentio refers to the right to retain or deduct expenses or enrichments when the other party brings an action, typically asserted via an exception (exceptio). Here, it indicates that while the ward is not directly bound, if he brings an action, the other party is entitled to raise defenses of retention.

Cite this passage

Justinian I, The Digest of Justinian §18.5.7.pr-18.5.7.1. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:18.5.7.pr-18.5.7.1

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