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Justinian I · The Digest of Justinian §21.2.38.pr

Eviction of a Pledge and Assignment of Actions to the Buyer

Passage 3119 of 9271 · Latin

Summary

It is discussed whether a creditor who sold a pledge is liable under the action on purchase to transfer his counter-action on pledge against the debtor to the buyer in case of eviction, which is concluded in the affirmative as it causes no loss to the creditor.

[IDEM libro secundo disputationum. ] §21.2.38.prIn creditore qui pignus uendidit tractari potest, an re euicta uel ad hoc teneatur ex empto, ut quam habet aduersus debitorem actionem, eam praestet: habet autem contrariam pigneraticiam actionem.
[THE SAME, Disputations, Book Two] In the case of a creditor who has sold a pledge, it can be discussed whether, if the thing is evicted, he is liable under the action on purchase at least to this extent, that he make over the action which he has against the debtor; moreover, he has the counter-action on pledge.
et magis est ut praestet: cui enim non aequum uidebitur uel hoc saltem consequi emptorem, quod sine dispendio creditoris futurum est?
And it is more correct that he should make it over; for to whom will it not seem equitable that the buyer obtain at least this, which is to be without any loss to the creditor?

Notes

  1. §21.2.38.prquam habet aduersus debitorem actionem — A construction where the antecedent `actionem` is incorporated into the relative clause `quam habet...`. In a standard word order, it would be `actionem, quam habet aduersus debitorem`, standing in apposition to or serving as the direct object of `praestet` represented by `eam`.
  2. §21.2.38.prmagis est ut praestet — The impersonal expression `magis est` ("it is more likely/proper") is followed by a substantive `ut` clause with the subjunctive as its subject. `praestet` is the third-person singular present active subjunctive, expressing the legal opinion that the creditor ought to make over the action.
  3. §21.2.38.prcui enim non aequum uidebitur uel hoc saltem consequi emptorem — A rhetorical question where `cui` is a dative of reference ("to whom") modifying the predicate adjective `aequum` with `uidebitur`. The subject of the main verb `uidebitur` is the accusative and infinitive clause `consequi emptorem` ("that the buyer should obtain..."). It implies a strong affirmative statement: "it will seem equitable to everyone."

Cite this passage

Justinian I, The Digest of Justinian §21.2.38.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:21.2.38.pr

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