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Justinian I · The Digest of Justinian §20.5.7.pr-20.5.7.2

Redemption Agreements in Pledge Sale and Restriction of Disposal

Passage 2991 of 9271 · Latin

Summary

Discusses whether a debtor can benefit from a redemption clause made by a creditor, the conditions for rescinding the sale of a hypothec, and the validity of an agreement prohibiting the debtor from selling the pledge.

[MARCIANUS libro singulari ad formulam hypothecariam. ] §20.5.7.prSi creditor pignus uel hypothecam uendiderit hoc pacto, ut liceat sibi reddere pecuniam et pignus reciperare: an, si paratus sit debitor reddere pecuniam, consequi id possit? et Iulianus libro undecimo digestorum scribit recte quidem distractum esse pignus, ceterum agi posse cum creditore, ut, si quas actiones habeat, eas cedat debitori.
[MARCIANUS from the single book on the Hypothecary Formula.] If a creditor sells a pledge or hypothec under this agreement, that he (the creditor) is allowed to return the money and recover the pledge: can the debtor, if he is ready to return the money, achieve this? And Julian writes in the eleventh book of the Digests that the pledge was indeed rightly sold, but that action can be brought against the creditor so that, if he has any actions, he may cede them to the debtor.
sed quod Iulianus scribit in pignore, idem et circa hypothecam est.
But what Julian writes in the case of a pledge is the same also concerning a hypothec.
§20.5.7.1Illud inspiciendum est, an liceat debitori, si hypotheca uenierit, pecunia soluta eam reciperare.
This must be examined, whether, if a hypothec has been sold, the debtor is allowed to recover it by paying the money.
et si quidem ita uenierit, ut, si intra certum tempus a debitore pecunia soluta fuerit, emptio rescindatur, intra illud tempus pecunia soluta recipit hypothecam: si uero tempus praeteriit aut si non eo pacto res uenierit, non potest rescindi uenditio, nisi minor sit annis uiginti quinque debitor aut pupillus aut rei publicae causa absens uel in aliqua earum causarum erit, ex quibus edicto succurritur.
And if indeed it was sold on the condition that, if the money is paid by the debtor within a certain time, the purchase is rescinded, then by paying the money within that time he recovers the hypothec; but if the time has passed or if the thing was sold without such an agreement, the sale cannot be rescinded, unless the debtor is under twenty-five years of age, or a ward, or absent on public business, or in one of those situations in which relief is granted by the edict.
§20.5.7.2Quaeritur, si pactum sit a creditore, ne liceat debitori hypothecam uendere uel pignus, quid iuris sit, et an pactio nulla sit talis, quasi contra ius sit posita, ideoque ueniri possit.
It is asked, if it has been agreed by the creditor that the debtor is not allowed to sell the hypothec or pledge, what the law is, and whether such an agreement is null, as if set up against the law, and therefore the thing can be sold.
et certum est nullam esse uenditionem, ut pactioni stetur.
And it is certain that the sale is null, so that the agreement is upheld.

Notes

  1. §20.5.7.prsibi — The reflexive pronoun `sibi` refers to the creditor (`creditor`), the subject of the conditional clause (`Si creditor... uendiderit`). Therefore, this agreement (`pactum`) is a redemption clause allowing the creditor to return the price and recover the pledge. The following question addresses whether the debtor (`debitor`) can exercise this right in place of the creditor.
  2. §20.5.7.2pactum sit a creditore — The combination of the perfect passive (here subjunctive) `pactum sit` (from `paciscor`) and the ablative of agent `a creditore` indicates that the agreement was made at the initiative of, or with, the creditor.
  3. §20.5.7.2ut pactioni stetur — An impersonal passive construction using the intransitive verb `sto` (to stand by, adhere to) with the dative `pactioni`. It forms a purpose clause meaning "so that the agreement is observed/upheld," explaining why the sale by the debtor is considered null.

Cite this passage

Justinian I, The Digest of Justinian §20.5.7.pr-20.5.7.2. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:20.5.7.pr-20.5.7.2

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