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Justinian I · The Digest of Justinian §39.5.25.pr

Commissioned Gift Delivered in the Agent's Own Name

Passage 6240 of 9271 · Latin

Summary

The jurist discusses whether ownership passes when a commissioned gift is delivered in the agent's own name, concluding that strictly it does not and the agent commits theft, but equitably the donor is barred by the plea of fraud if they sue the recipient.

[IDEM libro sexto epistularum. ] §39.5.25.prSi tibi dederim rem, ut Titio meo nomine donares, et tu tuo nomine eam ei dederis, an factam eius putes? respondit, si rem tibi dederim, ut Titio meo nomine donares eamque tu tuo nomine ei dederis, quantum ad iuris suptilitatem accipientis facta non est et tu furti obligaris: sed benignius est, si agam contra eum qui rem accepit, exceptione doli mali me summoueri.
[THE SAME, in the sixth book of letters.] If I have given you a thing so that you might donate it to Titius in my name, and you have given it to him in your own name, do you think it has become his? He replied: If I have given you a thing so that you might donate it to Titius in my name, and you have given it to him in your own name, as far as the subtlety of the law is concerned, it has not become the recipient's, and you are liable for theft; but it is more equitable that, if I bring an action against him who received the thing, I be barred by the plea of fraud.

Notes

  1. §39.5.25.prfactam eius — The preceding feminine noun `rem` is understood as the subject accusative of the omitted infinitive `esse`, forming an accusative with infinitive construction 'that the thing has become his (Titius's)' depending on the verb `putes`.
  2. §39.5.25.prfurti obligaris — `furti` is the genitive of charge (or crime) dependent on the passive verb `obligaris` ('you are held liable'). It indicates that, under strict law, transferring a thing in one's own name contrary to the original instruction (mandate) constitutes theft (*furtum*).
  3. §39.5.25.prbenignius est ... me summoueri — The accusative with infinitive clause `me ... summoueri` ('that I be barred') serves as the subject of the impersonal expression `benignius est` ('it is more equitable'). The conditional clause `si agam contra eum...` is nested within this subject clause.

Cite this passage

Justinian I, The Digest of Justinian §39.5.25.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:39.5.25.pr

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