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Justinian I · The Digest of Justinian §22.3.23.pr

Burden of Proof for Pledge and Ownership in Hypothecary Action

Passage 3241 of 9271 · Latin

Summary

Marcianus states that in a hypothecary action, the plaintiff must prove not only the existence of the agreement for a pledge or hypothec, but also that the property belonged to the debtor or to the person with whose consent it was pledged at the time of the agreement.

[MARCIANUS libro singulari ad formulam hypothecariam. ] §22.3.23.prAnte omnia probandum est, quod inter agentem et debitorem conuenit, ut pignori hypothecaeue sit: sed et si hoc probet actor, illud quoque implere debet rem pertinere ad debitorem eo tempore quo conuenit de pignore, aut cuius uoluntate hypotheca data sit.
[MARCIANUS, in the single book on the Hypothecary Formula.] Before all things, it must be proved that an agreement was made between the plaintiff and the debtor that [the property] should be a pledge or a hypothec; but even if the plaintiff proves this, he must also satisfy this requirement: that the property belonged to the debtor at the time when the agreement concerning the pledge was made, or [to the person] by whose consent the hypothec was given.

Notes

  1. §22.3.23.prpignori hypothecaeue sit — The words 'pignori hypothecaeue' are dative of purpose (or predicative dative), used with the verb 'sit' (with an implied subject 'res') to mean 'to serve as a pledge or hypothec'.
  2. §22.3.23.prrem pertinere ad debitorem ... aut cuius uoluntate — This is a relative clause containing an ellipsis following the accusative-and-infinitive clause 'rem pertinere...' which specifies the preceding proleptic 'illud'. The antecedent of the relative pronoun 'cuius' (such as 'ad eum') is omitted. It should be understood as: 'rem pertinere ad debitorem... aut [ad eum] cuius uoluntate hypotheca data sit' ('that the property belonged to the debtor... or to the person by whose consent the hypothec was given').

Cite this passage

Justinian I, The Digest of Justinian §22.3.23.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:22.3.23.pr

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