Humanitext Reader

Justinian I · The Digest of Justinian §21.2.65.pr

Eviction of Pledged Inheritance and Recourse Among Heirs

Passage 3146 of 9271 · Latin

Summary

In a case where co-heirs sold a pledged inheritance in proportion to their shares, and the property was evicted due to the indivisible nature of the pledge despite one heir's partial payment, the diligent heir can seek recourse against the negligent co-heir through the action for division of an inheritance.

[IDEM libro octauo quaestionum. ] §21.2.65.prRem hereditariam pignori obligatam heredes uendiderunt et euictionis nomine pro partibus hereditariis spoponderunt: cum alter pignus pro parte sua liberasset, rem creditor euicit: quaerebatur an uterque heredum conueniri possit? idque placebat propter indiuisam pignoris causam.
[IDEM libro octauo quaestionum.] Co-heirs sold an inherited property subject to a pledge and undertook a warranty on account of eviction in proportion to their hereditary shares. When one of them had released the pledge for his own part, the creditor evicted the property. It was asked whether both heirs could be sued. And this was approved because of the undivided nature of the pledge.
nec remedio locus esse uidebatur, ut per doli exceptionem actiones ei qui pecuniam creditori dedit praestarentur, quia non duo rei facti proponerentur.
Nor did there seem to be room for a remedy, such as that actions should be granted through an exception of doli to the one who gave the money to the creditor, because they were not proposed as joint debtors.
sed familiae herciscundae iudicium eo nomine utile est: nam quid interest, unus ex heredibus in totum liberauerit pignus an uero pro sua dumtaxat portione? cum coheredis neglegentia damnosa non debet esse alteri.
But the action for division of an inheritance is useful in that respect; for what difference does it make whether one of the heirs released the pledge in its entirety or indeed only for his own portion? Since the negligence of a co-heir ought not to be damaging to the other.

Notes

  1. §21.2.65.prindiuisam pignoris causam — Refers to the indivisible nature of a pledge. Even if a portion of the debt is paid, the pledge remains in effect over the entire property as long as any part of the debt remains unpaid. Therefore, even if one heir releases the pledge for his own share, the creditor can still evict the entire property due to the other's default.
  2. §21.2.65.prnon duo rei facti proponerentur — Indicates that because the heirs promised individually "in proportion to their hereditary shares" (pro partibus hereditariis), they did not become joint debtors (duo rei promittendi) under a joint stipulation. Due to the lack of joint liability, the heir who paid his share cannot use the exception of doli to demand that the buyer transfer actions (actiones praestarentur) against the negligent co-heir.
  3. §21.2.65.prfamiliae herciscundae iudicium — The action for division of an inheritance. A comprehensive legal proceeding used to adjust and settle property relations among co-heirs. Although there is no direct remedy in relation to the buyer, this internal action allows the diligent heir to shift the loss incurred from the eviction liability onto the negligent co-heir.

Cite this passage

Justinian I, The Digest of Justinian §21.2.65.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:21.2.65.pr

Please note the AI-draft status of the translation and the date accessed.

Translation, notes and summary are AI-generated drafts, revised through reader feedback.