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Justinian I · The Digest of Justinian §21.2.55.pr-21.2.55.1

Eviction Stipulation upon Default Judgment and Notice to the Seller

Passage 3136 of 9271 · Latin

Summary

Ulpian discusses that a stipulation on eviction is not forfeited if the buyer loses due to mere absence, but it is forfeited if a rightful representative (like a tutor) conducts the case; he also addresses the necessity of notifying the seller and the effect of the seller's obstruction.

[ULPIANUS libro secundo ad edictum aedilium curulium. ] §21.2.55.prSi ideo contra emptorem iudicatum est, quod defuit, non committitur stipulatio: magis enim propter absentiam uictus uidetur quam quod malam causam habuit.
[ULPIANUS, Book II on the Edict of the Curule Aediles.] If judgment was given against the buyer for the reason that he was absent, the stipulation is not forfeited; for he seems to have been defeated because of his absence rather than because he had a bad case.
quid ergo, si ille quidem contra quem iudicatum est ad iudicium non adfuit, alius autem adfuit et causam egit: quid dicemus? ut puta acceptum quidem cum pupillo tutore auctore fuit iudicium, sed absente pupillo tutor causam egit et iudicatum est contra tutorem: quare non dicemus committi stipulationem? etenim actam esse causam palam est.
What then should we say if the person against whom judgment was given was not present at the trial, but someone else was present and conducted the case? For example, suppose a trial was undertaken with a ward with the authorization of his tutor, but, while the ward was absent, the tutor conducted the case and judgment was given against the tutor: why should we not say that the stipulation is forfeited? For indeed it is clear that the case was conducted.
et satis est ab eo cui ius agendi fuit causam esse actam.
And it is sufficient that the case was conducted by one who had the right of conducting it.
§21.2.55.1Praesenti autem uenditori denuntiandum est: siue autem absit, siue praesens sit et per eum fiat quo minus denuntietur, committetur stipulatio.
But notice must be given to the seller if he is present; but if he is absent, or if he is present but it is due to him that notice is not given, the stipulation will be forfeited.

Notes

  1. §21.2.55.prcommittitur — The verb committo in legal contexts means that a conditional stipulation "becomes enforceable" or "is forfeited" (i.e., its condition is fulfilled). Here it refers to the state where the buyer is entitled to hold the seller liable under the stipulation due to eviction.
  2. §21.2.55.1per eum fiat quo minus — A standard construction combining fiat (present subjunctive of fio, "to happen") with the prepositional phrase per eum ("due to him") and the conjunction quo minus introducing a clause of prevention. It means "it is due to him that the notification is prevented or not made."

Cite this passage

Justinian I, The Digest of Justinian §21.2.55.pr-21.2.55.1. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:21.2.55.pr-21.2.55.1

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