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Justinian I · The Digest of Justinian §34.3.10.pr

Pact not to sue surety and assignment of actions

Passage 5210 of 9271 · Latin

Summary

Julianus explains that when an heir is charged not to sue the surety but to pay the principal debt to a legatee, he must make an agreement of non-suit with the surety and cede his actions against the principal debtor to the legatee.

[IULIANUS libro trigesimo tertio digestorum. ] §34.3.10.prSi damnatus heres fuerit a fideiussore quidem non petere, quod autem reus debet, Titio dare, pacisci debet, ne a fideiussore petat, et aduersus reum actiones suas praestare legatario: quemadmodum damnatus heres, ne a reo petat, et damnatus dare quod fideiussor debet, et reo acceptum facere et legatario litis aestimationem sufferre cogatur.
[JULIANUS, Digest, book 33] If an heir has been charged with a duty not to sue the surety, but to give Titius what the principal debtor owes, he ought to agree not to sue the surety, and to make his actions against the principal debtor available to the legatee: just as an heir who has been charged not to sue the principal debtor, and charged to give what the surety owes, is compelled both to release the principal debtor by acceptilatio and to bear the estimated value of the suit for the legatee.

Notes

  1. §34.3.10.prdamnatus heres fuerit — A passive future perfect (or perfect subjunctive) where 'damnare' is used in the sense of imposing a testamentary charge (legatum per damnationem), governing the subsequent infinitives 'non petere' and 'dare' as its complements.
  2. §34.3.10.prlitis aestimationem sufferre — The infinitive 'sufferre' is a complement of the main verb 'cogatur' in the comparative clause. It refers to being bound to pay damages (litis aestimatio) for non-performance to the legatee, which arises because the heir's release of the principal debtor (acceptum facere) also extinguished the surety's debt, rendering the bequest of 'giving what the surety owes' impossible to perform.

Cite this passage

Justinian I, The Digest of Justinian §34.3.10.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:34.3.10.pr

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