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Justinian I · The Digest of Justinian §20.4.2.pr

Priority Between General and Specific Pledges and Conditions

Passage 2965 of 9271 · Latin

Summary

This section discusses the priority between a prior creditor with a general pledge and a subsequent creditor with a specific pledge, explaining how a conditional agreement of the prior creditor can make the subsequent creditor the sole pledgee.

[IDEM libro tertio responsorum. ] §20.4.2.prQui generaliter bona debitoris pignori accepit eo potior est, cui postea praedium ex his bonis datur, quamuis ex ceteris pecuniam suam redigere possit.
[THE SAME, in his third book of Opinions.] He who has accepted the debtor's goods under a general pledge is preferred to him to whom a tract of land from these goods is subsequently given, although he can recover his money from the rest.
quod si ea conuentio prioris fuit, ut ita demum cetera bona pignori haberentur, si pecunia de his, quae generaliter accepit, seruari non potuisset, deficiente secunda conuentione secundus creditor in pignore postea dato non tam potior quam solus inuenietur.
But if the agreement of the first creditor was such that the other goods should only then be held as a pledge if the money could not be recovered from those which he accepted under the general pledge, then, if the second agreement fails, the second creditor will be found to be not so much preferred as the sole creditor with respect to the pledge subsequently given.

Notes

  1. §20.4.2.preo potior est, cui — eo is an ablative of comparison acting as the antecedent to the relative clause introduced by cui. Thus, the phrase means 'is preferred to the one to whom...'.
  2. §20.4.2.prut ita demum... si... — The ut clause is a noun clause explaining the substance of ea conuentio. The correlation ita demum... si... forms an exclusive conditional structure, meaning 'only then... if...'.
  3. §20.4.2.prdeficiente secunda conuentione — Ablative absolute, meaning 'the second agreement failing'. The 'second agreement' refers to the conditional clause (the si clause) that other goods would be pledged; its 'failing' (deficiente) means the condition was not met (i.e., the money was successfully recovered from the primary assets), rendering the conditional pledge void.
  4. §20.4.2.prnon tam potior quam solus — An expression using the correlative non tam... quam... ('not so much... as...'). Since the first creditor's pledge does not extend to the land in question, the second creditor does not need to compete for priority (potior) but instead becomes the 'sole' (solus) pledgee of that land.

Cite this passage

Justinian I, The Digest of Justinian §20.4.2.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:20.4.2.pr

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