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Justinian I · The Digest of Justinian §38.5.12.pr

Defendant in Action for Fraudulent Transfer via Mandate

Passage 6014 of 9271 · Latin

Summary

The text discusses against whom (Seius or Titius) a patron should bring an action when a freedman transfers land to a trustee (Titius) commissioned by a third party (Seius) in order to defraud the patron, and how the liability is attributed.

[IAUOLENUS libro tertio epistularum. ] §38.5.12.prLibertus cum fraudandi patroni causa fundum Seio tradere uellet, Seius Titio mandauit, ut eum accipiat, ita ut inter Seium et Titium mandatum contrahatur.
[JAVOLENUS in the third book of Epistles.] When a freedman, for the purpose of defrauding his patron, wished to transfer a tract of land to Seius, Seius mandated Titius to receive it, so that a contract of mandate was entered into between Seius and Titius.
quaero, post mortem liberti patronus utrum cum Seio dumtaxat qui mandauit actionem habet, an cum Titio qui fundum retinet, an cum quo uelit agere possit? respondit: in eum, cui donatio quaesita est, ita tamen si ad illum res peruenerit, actio datur, cum omne negotium, quod eius uoluntate gestum sit, in condemnationem eius conferatur.
I ask whether, after the death of the freedman, the patron has an action against Seius alone who gave the mandate, or against Titius who retains the land, or whether he can sue whichever of them he wishes? He replied: An action is granted against the person for whom the donation was intended, provided, however, that the property has reached him; since every transaction which has been carried out by his will should contribute to his condemnation.
nec potest uideri id praestaturus quod alius possidet, cum actione mandati consequi rem possit, ita ut aut ipse patrono restituat aut eum cum quo mandatum contraxit restituere cogat.
Nor can he be deemed unable to perform that which another possesses, since he can recover the property by the action of mandate, so that he may either himself restore it to the patron or compel the person with whom he contracted the mandate to restore it.
quid enim dicemus, si is, qui in re interpositus est, nihil dolo fecit? non dubitabimus, quin omnimodo cum eo agi non possit.
For what shall we say if he who was interposed in the matter acted without any malice? We shall not doubt that he cannot be sued in any way.
quid enim non potest uideri dolo fecisse, qui fidem suam amico commodauit quam alii quam sibi ex liberti fraude adquisiit.
For how can he be deemed to have acted with malice, who lent his credit to a friend and acquired the property through the fraud of the freedman for another rather than for himself?

Notes

  1. §38.5.12.prcui donatio quaesita est — The relative pronoun 'cui' is in the dative, depending on the passive verb 'quaesita est'. It refers to the actual beneficiary of the donation (Seius, who gave the mandate), meaning 'the person for whom the donation was sought/acquired'.
  2. §38.5.12.prnec potest uideri id praestaturus quod alius possidet — 'praestaturus' is a future active participle with the omission of 'esse' from the future infinitive 'praestaturus esse'. Acting as a nominative complement to 'uideri', it forms a double negation: 'nor can he be deemed as one who will not perform what another possesses', indicating that he is indeed expected to perform it because he can recover the property through the action of mandate.
  3. §38.5.12.prquid enim non potest uideri dolo fecisse — A problematic passage in terms of syntax. Either 'quid enim' is treated as an independent parenthetical question ('Indeed, why?'), followed by 'non potest...' as a declarative clause ('he cannot be deemed to have acted with malice, who...'), or 'quid' is emended to 'quis' to make it a rhetorical question ('For who...'). To maintain consistency across all languages, we adopt the former reading where the trustee (Titius), having merely lent his name, is declared incapable of being deemed to have acted with malice.

Cite this passage

Justinian I, The Digest of Justinian §38.5.12.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:38.5.12.pr

Please note the AI-draft status of the translation and the date accessed.

Translation, notes and summary are AI-generated drafts, revised through reader feedback.