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Justinian I · The Digest of Justinian §2.14.62.pr

Guarantor's Defense and Debtor's Revoked Pact

Passage 428 of 9271 · Latin

Summary

On the question of whether a subsequent agreement by the principal debtor to allow demands affects the guarantor after a non-demand agreement had benefited them, it is concluded that the acquired plea of agreement cannot be taken from the guarantor against their will.

[FURIUS ANTHIANUS libro primo ad edictum. ] §2.14.62.prSi reus, postquam pactus sit a se non peti pecuniam ideoque coepit id pactum fideiussori quoque prodesse, pactus sit ut a se peti liceat: an utilitas prioris pacti sublata sit fideiussori, quaesitum est.
[FURIUS ANTHIANUS in the first book on the Edict.] If a principal debtor, after having agreed that the money should not be demanded from him, and therefore that agreement had also begun to benefit his guarantor, should subsequently agree that it may be demanded from him: the question was raised whether the benefit of the prior agreement was taken away from the guarantor.
sed uerius est semel adquisitam fideiussori pacti exceptionem ulterius ei inuito extorqueri non posse.
But the more correct view is that the plea of the agreement, once acquired by the guarantor, cannot further be extorted from him against his will.

Notes

  1. 2.14.62.prreus — While it often means 'defendant', here, in contrast with the guarantor (fideiussor), it refers to the 'principal debtor' (reus debendi or reus principalis).
  2. 2.14.62.prei inuito — A combination of the dative pronoun ei (referring to the guarantor) and the adjective inuito (unwilling). It functions predicatively, meaning 'against his will' or 'without his consent'.
  3. 2.14.62.prpacti exceptionem — The 'plea of agreement' (exceptio pacti conventi). It refers to the defense that the guarantor can assert to refuse the claim, based on the agreement not to demand (pactum de non petendo) concluded between the principal debtor and the creditor.

Cite this passage

Justinian I, The Digest of Justinian §2.14.62.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:2.14.62.pr

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