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Justinian I · The Digest of Justinian §20.4.20.pr

Priority of a Junior Pledgee over Surplus Value

Passage 2983 of 9271 · Latin

Summary

This section discusses the priority of rights over the surplus (hyperocham) of a pledged property, concluding that a second creditor who secured a pledge on the surplus before the first creditor made a subsequent loan has priority over the first creditor's later loan, provided the first loan is satisfied.

[TRYPHONINUS libro octauo disputationum. ] §20.4.20.prQuaerebatur, si post primum contractum tuum, antequam aliam pecuniam tu crederes, eidem debitori Seius credidisset quinquaginta et hyperocham huius rei, quae tibi pignori data esset, debitor obligasset, dehinc tu eidem debitori crederes forte quadraginta: quod plus est in pretio rei quam primo credidisti utrum Seio ob quinquaginta an tibi in quadraginta cederet pignoris hyperocha.
[TRYPHONINUS, in his eighth book of Disputations.] The question was raised: if after your first contract, before you lent other money, Seius had lent fifty to the same debtor and the debtor had pledged to him the surplus of this thing which had been given to you as a pledge, and then you lent, say, forty to the same debtor: whether the surplus of the pledge—which is what exceeds in the price of the thing what you first lent—should go to Seius for his fifty or to you for your forty.
finge Seium paratum esse offerre tibi summam primo ordine creditam.
Imagine that Seius is ready to offer you the sum lent in the first rank.
dixi consequens esse, ut Seius potior sit in eo quod amplius est in pignore, et oblata ab eo summa primo ordine credita usurarumque eius postponatur primus creditor in summam, quam postea eidem debitori credidit.
I said that it is a consequence that Seius should have priority in what is surplus in the pledge, and that upon the sum lent in the first rank and its interest being offered by him, the first creditor is postponed in respect of the sum which he afterwards lent to the same debtor.

Notes

  1. §20.4.20.prQuaerebatur, si ... — The structure of the sentence consists of the impersonal passive verb `Quaerebatur` ("it was asked"), followed by a conditional clause introduced by `si` setting up the hypothetical facts, and an indirect question clause `utrum ... an ... cederet` showing the point of law to be decided.
  2. §20.4.20.prquod plus est in pretio rei quam primo credidisti — This relative clause introduced by `quod` is inserted as an appositive explanation defining the subject of the indirect question, `pignoris hyperocha` (the surplus of the pledge).
  3. §20.4.20.problata ab eo summa primo ordine credita usurarumque eius — This is an ablative absolute construction with `summa` and `usurarum` as the logical subjects of the participle `oblata`, expressing the condition ("if/upon the sum and its interest being offered") for the subsequent subjunctive verb `postponatur` ("is postponed").

Cite this passage

Justinian I, The Digest of Justinian §20.4.20.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:20.4.20.pr

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