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Justinian I · The Digest of Justinian §3.3.76.pr

Defense Duty of Insolvent Defender after Giving Security

Passage 559 of 9271 · Latin

Summary

This fragment discusses Julianus' response regarding a case where Titius, acting as a defender for an absent party, gave security but became insolvent before accepting the joinder of issue, explaining why relieving him from the action provides no real benefit given the guarantors' right of recourse.

[IDEM libro quinto ad Minicium. ] §3.3.76.prTitius cum absentem defenderet, satisdedit et prius quam iudicium acciperet desiit reus soluendo esse: quam ob causam defensor recusabat iudicium in se reddi oportere.
[THE SAME in the fifth book on Minicius.] When Titius was defending an absent person, he gave security, and before he accepted the joinder of issue, he ceased to be a solvent defendant. For this reason, the defender refused to allow that the action ought to be granted against him.
quaero, an id ei concedi oporteat.
I ask whether this ought to be granted to him.
Iulianus respondit: defensor cum satisdedit, domini loco habendus est.
Julianus answered: when a defender has given security, he must be regarded as being in the position of the principal.
nec multum ei praestaturus est praetor, si eum non coegerit iudicium accipere, cum ad fideiussores eius iri possit et hi quidquid praestiterint a defensore consecuturi sint.
Nor will the praetor afford him much advantage if he does not compel him to accept the joinder of issue, since his guarantors can be proceeded against, and they will recover whatever they pay from the defender.

Notes

  1. §3.3.76.prreus soluendo esse — The noun 'reus' (defendant, debtor) is a nominative predicate in apposition with the subject Titius. 'soluendo' is the dative of the gerund expressing purpose or capacity, which together with 'esse' denotes the legal state of being solvent. Combined with 'desiit', it means 'he ceased to be a solvent defendant' (became insolvent).
  2. §3.3.76.prad fideiussores eius iri possit — 'iri' is the present passive infinitive of the intransitive verb 'eo' (to go), used impersonally. Combined with 'ad fideiussores' (to his guarantors), it means 'it is possible to proceed against his guarantors' or 'his guarantors can be approached for payment'.
  3. §3.3.76.prhi quidquid praestiterint a defensore consecuturi sint — 'consecuturi sint' is a periphrastic subjunctive construction consisting of the future active participle and the present subjunctive of 'consequor' (the subjunctive is required because it is in a causal 'cum' clause). It expresses a prospective or necessary consequence: 'they are to recover whatever they have paid from the defender'.

Cite this passage

Justinian I, The Digest of Justinian §3.3.76.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:3.3.76.pr

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