Justinian I · The Digest of Justinian §19.1.55.pr

Sale of Slaves Held by Enemies and Stay of Delivery

Passage 2821 of 9271 · Latin

Summary

Octavenus argues that the sale or promise of a slave held by the enemy is valid as long as the parties have commercial capacity, since the obstacle is merely a temporary difficulty in delivery rather than a natural impossibility, allowing the judge to suspend performance.

[POMPONIUS libro decimo epistularum. ] §19.1.55.prSi seruus, qui emeretur uel promitteretur, in hostium potestate sit, Octauenus magis putabat ualere emptionem et stipulationem, quia inter ementem et uendentem esset commercium: potius enim difficultatem in praestando eo inesse, quam in natura, etiamsi officio iudicis sustinenda esset eius praestatio, donec praestari possit.

[POMPONIUS in the tenth book of his Letters.] If a slave, who is being bought or promised, is in the power of the enemy, Octavenus was rather of the opinion that the purchase and stipulation are valid, because there is commercial relations (commercium) between the buyer and the seller; for he held that there is rather a difficulty in delivering him than a natural impossibility, even if his delivery ought to be suspended by the office of the judge until he can be delivered.

Notes

19.1.55.prcommercium — Meaning 'commercial capability' or 'commercial relations' (commercium). It presupposes that both parties possess the legal capacity to contract under civil law as a prerequisite for the validity of the transaction.
19.1.55.prdifficultatem in praestando eo inesse, quam in natura — An accusative with infinitive clause depending on `putabat`, where `eo` refers to the slave (`seruus`). It contrasts the factual 'difficulty' (`difficultas`) of performance with 'natural impossibility' (`impossibilitas in natura`), indicating that the former does not prevent the contract from being valid.
19.1.55.profficio iudicis sustinenda esset — `sustinenda esset` is a passive periphrastic conjugation (subjunctive imperfect) of `sustineo` (to suspend, defer). It indicates that the execution of the performance (`praestatio`) should be temporarily suspended by the discretion of the judge (`officio iudicis`) until the obstacle is removed.

Cite this passage

Justinian I, The Digest of Justinian §19.1.55.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:19.1.55.pr

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