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Justinian I · The Digest of Justinian §21.2.20.pr

Repurchase by the Pledgor and Warranty Against Eviction

Passage 3101 of 9271 · Latin

Summary

The passage explains that when a person sells a land they had previously pledged, and later buys it back under a security against eviction, the fact of the previous pledge must be excepted in the security contract, though even without such an exception, any action would be barred by the plea of fraud.

[POMPONIUS libro decimo ad Sabinum. ]
[POMPONIUS, Commentary on Sabinus, Book Ten.] I pledged my land, and then alienated it to you.
§21.2.20.prFundum meum obligaui, deinde alienaui tibi: ut eo nomine non obligeris, si eum postea abs te emam et satis pro euictione mihi des, excipiendum cautione, quod pro me obligatus sit, quia etiam non excepto eo agendo eo nomine contra te doli mali exceptione possim summoueri.
In order that you may not be held liable under that head, if I should afterwards buy it from you and you give me security against eviction, the fact that it was pledged on my behalf must be excepted in the security; because even if this is not excepted, if I should sue you on that account, I can be barred by the plea of fraud.

Notes

  1. 21.2.20.prexcipiendum cautione — excipiendum (with esse understood) is a gerundive expressing obligation, taking the quod-clause (quod pro me obligatus sit) as its subject. cautione is the ablative of cautio, meaning 'in the security' or 'in the stipulation for security'.
  2. 21.2.20.prdoli mali exceptione — Meaning 'by the plea of fraud' (exceptio doli mali). Since it is contrary to good faith (bona fides) for the plaintiff to sue the seller based on an eviction resulting from the plaintiff's own prior act of pledging the land, the defendant can defeat this action by raising the plea of fraud.

Cite this passage

Justinian I, The Digest of Justinian §21.2.20.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:21.2.20.pr

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