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Justinian I · The Digest of Justinian §19.1.28.pr

Action on Sale and Stipulated Penalty for Buyer Non-Performance

Passage 2794 of 9271 · Latin

Summary

Discusses the relationship and cumulation limits between the action on sale (actio ex uendito) and the action on stipulation (actio ex stipulatu) when a buyer promises an act and a penalty for non-performance.

[IULIANUS libro tertio ad Urseium Ferocem. ] §19.1.28.prPraedia mihi uendidisti et conuenit, ut aliquid facerem: quod si non fecissem, poenam promisi.
[JULIANUS, On Urseius Ferox, Book III.] You sold me tracts of land and it was agreed that I should do something; and if I did not do it, I promised a penalty.
respondit, uenditor antequam poenam ex stipulatu petat, ex uendito agere potest: si consecutus fuerit, quantum poenae nomine stipulatus esset, agentem ex stipulatu doli mali exceptio summouebit: si ex stipulatu poenam consecutus fueris, ipso iure ex uendito agere non poteris nisi in id, quod pluris eius interfuerit id fieri.
He answered: before the seller claims the penalty under the stipulation, he can sue on the sale. If he has obtained as much as was stipulated under the name of penalty, the plea of fraud will bar him if he sues under the stipulation. If you (the seller) have obtained the penalty under the stipulation, you cannot by operation of law sue on the sale, except for the amount by which it was of greater interest to him that the thing should be done.

Notes

  1. §19.1.28.prquod si — Connecting relative. It refers back to the content of `aliquid facerem` (specifically `aliquid`), meaning 'and if I did not do it'.
  2. §19.1.28.pragentem ex stipulatu — The accusative singular masculine of the present participle `agens` (one who sues), serving as the direct object of the main verb `summouebit` (will bar). It is used substantively to refer to the seller.
  3. §19.1.28.prnisi in id, quod pluris eius interfuerit id fieri — Construction of the impersonal verb `interest` (to be of importance/interest). The person interested is in the genitive `eius` (the seller), the degree of interest is in the genitive of value `pluris`, and the subject is the accusative and infinitive clause `id fieri` (that it should be done). It means 'except for the amount by which it was of greater interest to him that the act be performed'.

Cite this passage

Justinian I, The Digest of Justinian §19.1.28.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:19.1.28.pr

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