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Justinian I · The Digest of Justinian §19.1.50.pr

Buyer Released from Payment: Rights Before and After Delivery

Passage 2816 of 9271 · Latin

Summary

This section states that if a buyer is released from the obligation to pay the price by law before delivery, the seller cannot be compelled to deliver; however, if delivery has already occurred, the seller loses the thing as the buyer can defend against the claim.

[LABEO libro quarto posteriorum a Iauoleno epitomatorum. ] §19.1.50.prBona fides non patitur, ut, cum emptor alicuius legis beneficio pecuniam rei uenditae debere desisset antequam res ei tradatur, uenditor tradere compelletur et re sua careret.
[LABEO in the fourth book of Posteriora epitomized by Javolenus] Good faith does not allow that, when a buyer, by the benefit of some law, has ceased to owe the price of the thing sold before the thing is delivered to him, the seller should be compelled to deliver it and be deprived of his own property.
possessione autem tradita futurum est, ut rem uenditor aeque amitteret, utpote cum petenti eam rem petitor ei neque uendidisset neque tradidisset.
But if possession has been delivered, the consequence is that the seller would equally lose the thing, because, if the plaintiff suing for the thing had neither sold nor delivered it to him (he would recover it, but in fact he did sell and deliver it).

Notes

  1. §19.1.50.prcompelletur et re sua careret — In the ut-clause dependent on the present tense patitur, there is a mixture of the present subjunctive (compelletur, where one might expect careat) and the imperfect subjunctive (careret). The use of careret may be due to the attraction of the past tense of desisset in the subordinate cum-clause, or it represents the resulting state (being deprived of his property) viewed from a past perspective.
  2. §19.1.50.prneque uendidisset neque tradidisset — The subjunctive pluperfect (uendidisset, tradidisset) is understood as a conditional apodosis of an unfulfilled past condition without an explicit protasis. That is, 'if the plaintiff (the seller) had neither sold nor delivered it to him (he would recover it, but since he actually did, his claim is barred by the exceptio rei uenditae et traditae, and he loses the thing).' The dative participle petenti (to the one seeking) and the nominative petitor (the plaintiff) refer to the same seller, expressing the circumstance 'when the plaintiff seeks to recover the thing'.

Cite this passage

Justinian I, The Digest of Justinian §19.1.50.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:19.1.50.pr

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