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Justinian I · The Digest of Justinian §21.2.74.pr-21.2.74.3

Agreements on Eviction and Liability in Public and Debt Sales

Passage 3155 of 9271 · Latin

Summary

This section rules that prior agreements on eviction take precedence, specifies the limited scope of recovery and requirements for the buyer's action when pledged property sold by court order is evicted, outlines the seller's duty of defense during pending litigation, and defines the liability for fraud in the sale of a debt.

[HERMOGENIANUS libro secundo iuris epitomarum. ] §21.2.74.prSi plus uel minus, quam pretii nomine datum est, euictione secuta dari conuenerit, placitum custodiendum est.
[HERMOGENIANUS, Book 2 of the Epitomes of Law.] If, upon eviction following, it has been agreed that more or less than what was given under the name of the price should be paid, the agreement must be observed.
§21.2.74.1Si iussu iudicis rei iudicatae pignus captum per officium distrahatur, post euincatur, ex empto contra eum qui pretio liberatus est, non quanti interest, sed de pretio dumtaxat eiusque usuris habita ratione fructuum dabitur, scilicet si hos ei qui euicit restituere non habebat necesse.
If, by order of a judge for the execution of a judgment, a pledged property that was seized is sold through the court office, and is subsequently evicted, an action on purchase will be granted against the person who was released from debt by the price, not for the amount of his interest, but only for the price and its interest, taking into account the fruits; that is to say, if the buyer was not under a necessity to restore these to the person who evicted him.
§21.2.74.2Mota quaestione interim non ad pretium restituendum, sed ad rem defendendam uenditor conueniri potest.
When a dispute has been raised, in the meantime the seller can be sued not for restoring the price, but for defending the property.
§21.2.74.3Qui nomen quale fuit uendidit, dumtaxat ut sit, non ut exigi etiam aliquid possit, et dolum praestare cogitur.
He who has sold a claim as it was, merely to the effect that it exists, and not that anything can actually be recovered, is also compelled to be liable for fraud.

Notes

  1. §21.2.74.preuictione secuta — Ablative absolute with the perfect participle secuta (from sequor), carrying a conditional force: 'if eviction should follow' or 'upon eviction following.' It frames the potential future event of eviction as a condition.
  2. §21.2.74.1ex empto — An elliptical expression where the noun actio (action) is omitted, referring to the actio ex empto (action on purchase). It functions as the subject of the main verb dabitur ('will be granted').
  3. §21.2.74.1contra eum qui pretio liberatus est — 'The person who was released by the price' refers to the original debtor whose own debt was discharged and extinguished by the purchase price through the execution of the pledge by judicial order. Unlike a standard action for eviction against a regular seller, this specifies that the action on purchase (ex empto) is granted against the actual beneficiary of the execution, limited to the return of the price.
  4. §21.2.74.1habita ratione fructuum — Ablative absolute of the perfect participle habita and the noun ratione, literally meaning 'account having been taken of the fruits.' This implies that the value of the fruits (fructus) gathered by the buyer must be deducted from the price to be restored. The following clause, scilicet si..., qualifies this by stating that this deduction applies if the buyer was not obligated to restore those fruits to the evictor.
  5. §21.2.74.3dumtaxat ut sit, non ut exigi etiam aliquid possit — The subjunctive ut clauses governed by the adverb dumtaxat ('only to the extent that') define and limit the scope of the warranty. This captures the fundamental Roman law principle of debt assignment (nomen uendere): the seller guarantees the legal existence of the debt (ut sit, the 'veritas'), but does not guarantee its collectibility or the solvency of the debtor (ut exigi... possit, the 'bonitas').

Cite this passage

Justinian I, The Digest of Justinian §21.2.74.pr-21.2.74.3. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:21.2.74.pr-21.2.74.3

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