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Justinian I · The Digest of Justinian §26.7.59.pr

Creditor Composition and a Guardian's Share of Own Claim

Passage 3894 of 9271 · Latin

Summary

In a situation where an estate was insolvent and the ward had to abstain from inheritance, a guardian who had arranged for creditors to accept a reduced portion is ruled to be bound by the same rate for his own claims and cannot pay himself the full amount.

[IDEM libro uicesimo sexto digestorum. ] §26.7.59.prCum hereditas patris aere alieno grauaretur et res in eo statu uideretur, ut pupilla ab hereditate paterna abstineretur, unus ex tutoribus cum plerisque creditoribus ita decidit, ut certa crediti portione contenti essent acciperentque: idem curatores iam uiripotenti accepti cum plerisque creditoribus deciderunt: quaesitum est, an, si aliquis tutorum creditor patris pupillae solidam pecuniam expensam sibi ex re pupillae cum usuris fecerit, reuocari a curatoribus pupillae ad portiones eas possit, quas ceteri quoque creditores acceperunt.
[IDEM libro uicesimo sexto digestorum.] When the inheritance of the father was heavily burdened with debt, and the situation seemed to be such that the female ward should abstain from her father's inheritance, one of the guardians made an agreement with most of the creditors that they should be content with and receive a certain portion of their claim. Likewise, the curators appointed for her when she was already of marriageable age made an agreement with most of the creditors. The question arose whether, if one of the guardians, who was a creditor of the ward's father, paid himself the full sum of money with interest out of the ward's property, he could be forced by the curators of the ward to return the excess down to those portions which the other creditors also received.
respondit eum tutorem, qui ceteros ad portionem uocaret, eadem parte contentum esse debere.
He answered that the guardian who called upon the others to accept a portion ought to be content with the same share.

Notes

  1. 26.7.59.prab hereditate paterna abstineretur — abstineretur (subjunctive imperfect passive) refers to the "abstention from inheritance" (abstentio) in Roman law. Although a self-successor (suus heres) became heir automatically upon the death of the paterfamilias, the praetor granted the power of abstaining (potestas abstinendi) to avoid liability for an insolvent estate, provided they did not intermeddle with the inheritance.
  2. 26.7.59.prexpensam sibi ... fecerit — expensam ferre refers to booking an entry of expenditure in account books (expensilatio), meaning "to credit to oneself" or "to charge as paid to oneself". Here it implies that the guardian, abusing his position, paid himself the full amount of his own claim (principal and interest) out of the ward's assets.
  3. 26.7.59.prqui ceteros ad portionem uocaret — The verb uocaret in the relative clause is in the subjunctive (concessive or characteristic), carrying the nuance of "although he was the one who called upon the others to accept a portion" or "who, as a guardian, had invited others to a compromise". This forms the basis of the decision that under the principle of good faith (bona fides), he cannot recover the full amount while demanding others to accept a reduction.

Cite this passage

Justinian I, The Digest of Justinian §26.7.59.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:26.7.59.pr

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