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Justinian I · The Digest of Justinian §34.3.11.pr

Validity of a Legacy of Release to a Surety

Passage 5211 of 9271 · Latin

Summary

Julianus rules that a legacy of release in favor of a surety is valid even if the surety has an action of mandate, because a direct release provides a substantial benefit compared to performing first and suing later.

[IDEM libro trigesimo sexto digestorum. ] §34.3.11.prSi debitor fideiussorem suum ab herede suo liberari iusserit, an fideiussor liberari debeat? respondit debere.
[The same, in the thirty-sixth book of the Digests.] If a debtor has ordered that his surety be released by his heir, must the surety be released? He answered that he must.
item quaesitum est, an, quia mandati actione heredes tenerentur, inutile legatum esset, quemadmodum inutile legatum est quod debitor creditori suo legat.
Likewise, the question was asked whether, because the heirs would be liable to an action of mandate, the legacy was useless, just as a legacy which a debtor leaves to his creditor is useless.
respondit, quotiens debitor creditori suo legaret, ita inutile esse legatum, si nihil interesset creditoris ex testamento potius agere quam ex pristina obligatione.
He answered that, whenever a debtor makes a legacy to his creditor, the legacy is useless only if it is of no interest to the creditor to sue under the will rather than under the original obligation.
nam et si Titius mandauerit Maeuio, ut pecuniam promitteret, deinde liberari eum iusserit a stipulatore, manifestum est, quantum intersit promissoris liberari potius quam praestare ex stipulatu, deinde mandati agere.
For even if Titius mandated Maevius to promise money, and then ordered that he be released by the stipulator, it is clear how much it is in the interest of the promisor to be released rather than to perform under the stipulation and then bring an action of mandate.

Notes

  1. §34.3.11.prinutile legatum — Useless or ineffective legacy. In Roman law, a legacy is deemed 'inutile' (void or ineffective) if it does not confer any practical advantage (utilitas) on the legatee beyond what they are already entitled to, as in the case of a debtor bequeathing an existing debt to their creditor.
  2. §34.3.11.prita... si... — 'Only if...' The correlation between 'ita' and 'si' creates a restrictive conditional clause, indicating that the legacy is useless (inutile) only under the specific condition that the creditor has no additional interest.
  3. §34.3.11.prquantum intersit — 'How much it is in the interest.' The impersonal verb 'interest' is accompanied by the neuter accusative pronoun 'quantum' to form an indirect question. The person to whom it is of interest is expressed in the genitive (promissoris).

Cite this passage

Justinian I, The Digest of Justinian §34.3.11.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:34.3.11.pr

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