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Justinian I · The Digest of Justinian §20.1.21.pr-20.1.21.3

Pledge by Agents, Risk Allocation, and Valuation

Passage 2934 of 9271 · Latin

Summary

This chunk discusses the validity of pledge agreements made by agents, the actions against debtors who purchased the pledge from non-owners, the allocation of risks and gains of the pledge, and the valuation of suits when the pledged property is not restored.

[IDEM libro septuagesimo tertio ad edictum. ] §20.1.21.prSi inter colonum et procuratorem meum conuenerit de pignore uel ratam habente me conuentionem uel mandante, quasi inter me et colonum meum conuenisse uideatur.
[THE SAME, in his seventy-third book on the Edict.] If an agreement concerning a pledge has been made between a tenant and my procurator, with me either ratifying the agreement or having mandated it, it is to be regarded as if the agreement had been made between myself and my tenant.
§20.1.21.1Si debitor seruum, quem a non domino bona fide emerat et pignerauit, teneat, Seruianae locus est et, si aduersus eum agat creditor, doli replicatione exceptionem elidet: et ita Iulianus ait, et habet rationem.
If a debtor holds a slave whom he had bought in good faith from a non-owner and pledged, the Servian action is applicable, and if the creditor brings an action against him, he will defeat the exception by a replication of fraud; and so Julian says, and this is reasonable.
§20.1.21.2Quidquid pignori commodi siue incommodi fortuito accessit, id ad debitorem pertinet.
Whatever advantage or disadvantage has accrued to the pledge by chance belongs to the debtor.
§20.1.21.3Si res pignerata non restituatur, lis aduersus possessorem erit aestimanda, sed utique aliter aduersus ipsum debitorem, aliter aduersus quemuis possessorem: nam aduersus debitorem non pluris quam quanti debet, quia non pluris interest, aduersus ceteros possessores etiam pluris, et quod amplius debito consecutus creditor fuerit, restituere debet debitori pigneraticia actione.
If the pledged property is not restored, the value of the suit against the possessor must be assessed, but surely in one way against the debtor himself, and in another way against any other possessor: for against the debtor it is assessed at no more than the amount he owes, because the creditor's interest is no greater, but against other possessors it may be even more, and whatever the creditor has obtained in excess of the debt, he must restore to the debtor by the action on pledge.

Notes

  1. 20.1.21.prratam habente me conuentionem uel mandante — Two ablative absolute constructions linked together (ratam habente me / me mandante), with "me" serving as the logical subject for both. "ratam habere" refers to retrospective ratification, while "mandare" refers to prospective authorization.
  2. 20.1.21.1doli replicatione exceptionem elidet — This points to a legal doctrine where, if the debtor raises any exception (exceptio) against the action for the recovery of the pledged property purchased from a non-owner, the creditor can defeat that exception by a replication of fraud (replicatio doli), on the grounds that it is contrary to good faith (dolus) for the debtor to refuse restoration of what he himself bought in good faith and pledged.
  3. 20.1.21.3non pluris quam quanti debet, quia non pluris interest — "pluris" and "quanti" are genitives of value. The impersonal verb "interest" denotes legal or financial concern, indicating that in an action against the debtor himself, the valuation of the suit cannot exceed the amount of the secured debt, which represents the maximum extent of the creditor's financial interest.

Cite this passage

Justinian I, The Digest of Justinian §20.1.21.pr-20.1.21.3. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:20.1.21.pr-20.1.21.3

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