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Justinian I · The Digest of Justinian §38.5.6.pr

Fraudulent Loans to Sons and the Fabian Action

Passage 6008 of 9271 · Latin

Summary

Julianus argues that even if a freedman loans money to a son under paternal power contrary to a senatus consultum, if done to defraud his patron, the act is regarded as a donation and the Fabian action is not barred.

[IULIANUS libro uicensimo sexto digestorum. ] §38.5.6.prSi libertus, cum fraudare patronum uellet, filio familias contra senatus consultum pecuniam crediderit, non erit inhibenda actio Fauiana, quia libertus donasse magis in hunc casum intellegendus est in fraudem patroni quam contra senatus consultum credidisse.
[JULIANUS in the twenty-sixth book of the Digests.] If a freedman, wishing to defraud his patron, has loaned money to a son under paternal power contrary to the decree of the senate, the Fabian action should not be barred, because in this case the freedman must be understood to have made a donation to defraud his patron rather than to have made a loan contrary to the decree of the senate.

Notes

  1. §38.5.6.prfilio familias — Refers to a son under paternal power (filius familias). Under the Senatus Consultum Macedonianum, loans of money to sons under paternal power were prohibited and could not be recovered by action. This passage addresses the conflict between this protective prohibition and the fraudulent behavior against a patron (the subject of the actio Fabiana).
  2. §38.5.6.prdonasse magis ... quam ... credidisse intellegendus est — The personal construction "intellegendus est" governs the perfect infinitives "donasse" (from donare) and "credidisse" (from credere). It states a legal interpretation where, rather than viewing the act as an unrecoverable "loan contrary to the decree of the senate," the law deems it a "donation to defraud the patron," thereby allowing the patron to bring the Fabian action.

Cite this passage

Justinian I, The Digest of Justinian §38.5.6.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:38.5.6.pr

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