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Justinian I · The Digest of Justinian §39.5.18.pr-39.5.18.3

Donations Mixed with Business and Liability for Eviction

Passage 6233 of 9271 · Latin

Summary

The text discusses the non-existence of an obligation when a transaction is mixed with a donation, the nature and effects of donation in the delivery of a slave for manumission after five years, and the donor's liability in the case of a donation of another's property followed by eviction.

[IDEM libro septuagensimo primo ad edictum. ] §39.5.18.prAristo ait, cum mixtum sit negotium cum donatione, obligationem non contrahi eo casu, quo donatio est, et ita Pomponius eum existimare refert.
[THE SAME, in the seventy-first book on the Edict.] Aristo says that when a transaction is mixed with a donation, an obligation is not contracted in that part in which there is a donation; and Pomponius reports that he thinks so.
§39.5.18.1Denique refert Aristonem putare, si seruum tibi tradidero ad hoc, ut eum post quinquennium manumittas, non posse ante quinquennium agi, quia donatio aliqua inesse uidetur: aliter atque, inquit, si ob hoc tibi tradidissem, ut continuo manumittas: hic enim nec donationi locum esse et ideo esse obligationem.
Finally, he reports that Aristo thinks that if I deliver a slave to you on the condition that you manumit him after five years, an action cannot be brought before the five years, because some donation seems to be involved. It is different, he says, if I had delivered him to you on the condition that you manumit him immediately; for here there is no room for a donation, and therefore there is an obligation.
sed et superiore casu quid acti sit, inspiciendum Pomponius ait: potest enim quinquennium non ad hoc esse positum, ut aliquid donetur.
But even in the former case, Pomponius says that we must look to what was agreed; for the five-year period may not have been set for the purpose of making a donation.
§39.5.18.2Idem Aristo ait, si donationis causa in hoc tradatur seruus, ut post quinquennium manumittatur, sit autem alienus, posse dubitari an usucapiatur, quia aliquid donationis interueniret.
The same Aristo says that if, for the sake of a donation, a slave is delivered on the condition that he is manumitted after five years, but he belongs to another, it can be doubted whether he is acquired by usucapion, because something of a donation intervenes.
et hoc genus quaestionis in mortis causa donationibus uersari Pomponius ait et magis putat uta, si ita donetur, ut post quinquennium manumittatur, posse dici usucapionem sequi.
And Pomponius says that this kind of question also arises in donations mortis causa, and he rather thinks that if it is so given that he is manumitted after five years, it can be said that usucapion follows.
§39.5.18.3Labeo ait, si quis mihi rem alienam donauerit inque eam sumptus magnos fecero et sic mihi euincatur, nullam mihi actionem contra donatorem competere: plane de dolo posse me aduersus eum habere actionem, si dolo fecit.
Labeo says that if someone has donated another's property to me, and I have incurred great expenses on it, and it is thus evicted from me, no action is available to me against the donor; clearly, I can have an action de dolo against him if he acted with malice.

Notes

  1. §39.5.18.prmixtum sit negotium cum donatione — A cum-clause with the subjunctive present passive 'sit'. It refers to a situation where a transaction is mixed with the intention of making a donation (negotium mixtum cum donatione). Aristo argues that in the aspect where the donation exists, no strict contractual obligation is contracted.
  2. §39.5.18.1non posse ante quinquennium agi — An accusative with infinitive construction acting as the main clause in indirect speech (governed by 'Aristonem putare'). The passive infinitive 'agi' is used impersonally, meaning 'an action cannot be brought'. Because the five-year delay is regarded as a benefit (donation) to the recipient, the right of action during this period is denied.
  3. §39.5.18.2posse dubitari an usucapiatur — The clause 'an usucapiatur' is an indirect question using the subjunctive present passive. It means 'whether it (the slave of another) is acquired by usucapion'. It reflects a classical debate on whether usucapion of another's property is possible when a donation serves as the underlying cause (iusta causa) of delivery.
  4. §39.5.18.3sic mihi euincatur — The verb 'euincatur' is in the subjunctive present passive (within the hypothetical conditional structure 'si...fecero...et sic...euincatur'). It refers to the situation where the donee of another's property has the object legally recovered from them by the true owner (eviction/evictio). As a rule, a donor is not liable for eviction unless they acted with malice (dolus).

Cite this passage

Justinian I, The Digest of Justinian §39.5.18.pr-39.5.18.3. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:39.5.18.pr-39.5.18.3

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