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Justinian I · The Digest of Justinian §27.8.6.pr

Liability of a Magistrate's Heir for Inadequate Security

Passage 4056 of 9271 · Latin

Summary

This section discusses the liability of a magistrate's heir, explaining the rescript of the deified Pius which states that if the magistrate committed gross negligence in omitting security, his heir is liable as if the magistrate were a surety, but the heir is not liable if the sureties were solvent at the time and only later became insolvent.

[ULPIANUS libro primo ad edictum. ] §27.8.6.prQuod ad heredem magistratus pertinet, exstat diui Pii rescriptum causa cognita debere dari actionem: nam magistratus si tanta fuit neglegentia, ut omnem cautionem omitteret, aequum est haberi eum loco fideiussoris, ut et heres eius teneatur: si uero cauit et tunc idonei fuerunt et postea desierunt, sicut et ipse magistratus probe recusaret hanc actionem, ita et heres multo iustius.
[ULPIAN, in the first book on the Edict.] As far as it pertains to the heir of the magistrate, there exists a rescript of the deified Pius that, after the case has been investigated, an action ought to be given; for if the magistrate was of such great negligence that he omitted all security, it is equitable that he be held in the place of a surety, so that his heir also may be held liable. But if he did take security, and they were solvent at that time and afterwards ceased to be so, just as the magistrate himself would properly refuse this action, so also his heir would do so much more justly.
nouissime non alias ait in heredem actionem dandam, quam si euidenter magistratus cum minus idoneis fideiussoribus contrahunt.
Lastly, he says that an action is not to be given against the heir other than if the magistrates evidently contract with less solvent sureties.

Notes

  1. 27.8.6.prQuod ad heredem magistratus pertinet — The formulaic expression `quod ad ... pertinet` indicating "as far as ... is concerned" or "with regard to ..." to introduce a new topic of discussion.
  2. 27.8.6.prcausa cognita — Ablative absolute. In a legal context, it signifies that a proper investigation of the facts and circumstances of the case has been conducted before the action is granted.
  3. 27.8.6.prmagistratus si tanta fuit neglegentia — It is natural to construe `magistratus` as a genitive modifying `neglegentia` ("if the negligence of the magistrate was so great"). It could also be taken as a nominative subject with `tanta neglegentia` as an ablative of quality ("if the magistrate was of such great negligence"), but the former is simpler and preferred given the word order.
  4. 27.8.6.prmagistratus cum minus idoneis fideiussoribus contrahunt — `magistratus` is the nominative plural of the fourth declension, agreeing with the third-person plural verb `contrahunt`.

Cite this passage

Justinian I, The Digest of Justinian §27.8.6.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:27.8.6.pr

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