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Justinian I · The Digest of Justinian §20.6.1.pr-20.6.1.2

Pledge Release by Third Party and Effects of Invalid Donation

Passage 2999 of 9271 · Latin

Summary

The text discusses the legal effects when a third party releases a pledge while managing the affairs of an absent debtor, the fate of a pledge when a donation of the remaining price is rendered ineffectual, and the validity of security provided by a defender of an absent party.

[PAPINIANUS libro undecimo responsorum. ] §20.6.1.prDebitoris absentis amicus negotia gessit et pignora citra emptionem pecunia sua liberauit: ius pristinum domino restitutum uidetur.
A friend of an absent debtor managed his affairs and released the pledged property with his own money without purchasing it: the original right is deemed to have been restored to the owner.
igitur qui negotium gessit, utilem Seruianam dari sibi non recte desiderabit: si tamen possideat, exceptione doli defenditur.
Therefore, the person who managed the affairs will not rightly demand that the beneficial Servian action be granted to him; however, if he is in possession, he is protected by the plea of fraud.
§20.6.1.1Cum uenditor numerata sibi parte pretii praedium quod uenierat pignori accepisset ac postea residuum pretium emptori litteris ad eum missis donasset, eoque defuncto donationem quibusdam modis inutilem esse constabat. iure pignoris fiscum frustra petere praedium, qui successerat in locum uenditoris, apparuit, cuius pignoris solutum esse pactum prima uoluntate donationis constabat, quoniam inutilem pecuniae donationem lex facit, cui non est locus in pignore liberando.
When a seller, having been paid part of the price, had received the estate which had been sold as a pledge, and afterwards had donated the remaining price to the buyer by sending a letter to him, and upon his death it was established that the donation was ineffectual in certain ways, it appeared that the fiscus, which had succeeded to the position of the seller, sued for the estate under the right of pledge in vain, since it was established that the agreement of pledge was dissolved by the initial intent of the donation, because the law makes a donation of money ineffectual, which has no place in releasing a pledge.
§20.6.1.2Defensor absentis cautionem iudicatum solui praestitit: in dominum iudicio postea translato fideiussores ob rem iudicatam quos defensor dedit non tenebuntur nec pignora quae dederunt.
A defender of an absent party provided security for the payment of the judgment: if the suit is afterwards transferred to the principal, the sureties for the matter adjudged whom the defender gave will not be liable, nor will the pledges they gave.

Notes

  1. 20.6.1.prcitra emptionem — The preposition citra means "short of" or "without" (sine). Here it indicates that the friend did not purchase the pledged property himself, but simply extinguished the pledge by paying the debt.
  2. 20.6.1.prutilem Seruianam — The Servian action (actio Serviana) is an action for a pledgee to recover pledged property. The question here is whether this action should be granted in an analogous (utilis) form to a third party who released the pledge with his own money. Since the payment was made without the debtor's consent and was not a purchase, it is rightly denied.
  3. 20.6.1.1cuius pignoris solutum esse pactum prima uoluntate donationis constabat — Syntactically, cuius is a relative pronoun referring back to praedium (the estate) and modifying pignoris (genitive of pignus). The clause is structured as "it was established (constabat) that the agreement (pactum) of whose pledge (cuius pignoris) was dissolved (solutum esse)."
  4. 20.6.1.1cui non est locus in pignore liberando — The antecedent of the relative pronoun cui is the entire state of affairs or the rule implied by "the law makes a donation of money ineffectual" (inutilem pecuniae donationem lex facit). It indicates that there is "no place" (non est locus) for this rule of invalidity to apply to the release of the pledge (pignore liberando).
  5. 20.6.1.2in dominum iudicio postea translato — This is an ablative absolute construction where "iudicio translato" means "the suit having been transferred" and "in dominum" (to the principal/owner) indicates the destination of the transfer.

Cite this passage

Justinian I, The Digest of Justinian §20.6.1.pr-20.6.1.2. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:20.6.1.pr-20.6.1.2

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