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Justinian I · The Digest of Justinian §21.2.35.pr

Eviction by Creditor and the Plea of Bad Faith

Passage 3116 of 9271 · Latin

Summary

This section discusses the conditions for eviction by a creditor and explains that if a buyer sues the seller after the pledge has been released, the seller can defend themselves with the plea of bad faith.

[PAULUS libro secundo ad edictum aedilium curulium. ] §21.2.35.prEuictus autem a creditore tunc uidetur, cum fere spes habendi abscisa est: itaque si Seruiana actione euictus sit, committitur quidem stipulatio: sed quoniam soluta a debitore pecunia potest seruum habere, si soluto pignore uenditor conueniatur, poterit uti doli exceptione.
[PAULUS, On the Edict of the Curule Aediles, Book Two] Now, eviction by a creditor is deemed to occur when the hope of holding the property has been almost cut off; therefore, if one is evicted by the Servian action, the stipulation is indeed activated; but since, once the money is paid by the debtor, the buyer can hold the slave, if the seller is sued after the pledge has been released, he will be able to use the plea of bad faith.

Notes

  1. 21.2.35.prhabendi — The genitive gerund of the verb habeo, modifying the noun spes. Here, habere does not simply mean 'to have', but carries the legal meaning of 'retaining' or 'continuing to hold' the property lawfully without the threat of eviction.
  2. 21.2.35.prcommittitur — The passive verb committo (third-person singular present passive) in a legal context means that the condition of a stipulation (stipulatio) has been fulfilled, thereby giving rise to the liability or the right to claim performance. Here, it refers to the activation of the stipulation for double value due to the occurrence of eviction.
  3. 21.2.35.prsoluta a debitore pecunia — An ablative absolute construction expressing cause or condition: 'by the money being paid by the debtor'. Similarly, the subsequent soluto pignore is also an ablative absolute, meaning 'after the pledge has been released' (e.g., by the payment of the debt).

Cite this passage

Justinian I, The Digest of Justinian §21.2.35.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:21.2.35.pr

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