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Justinian I · The Digest of Justinian §39.5.33.pr-39.5.33.3

Benefit of Competence in Gifts and Delegation to Third Parties

Passage 6248 of 9271 · Latin

Summary

This chunk defines the scope of the benefit of competence in promises and actions based on donations, and explains the legal effects of donation agreements involving delegation to third parties.

[HERMOGENIANUS libro sexto iuris epitomarum. ] §39.5.33.prQui id, quod ex causa donationis stipulanti spoponderat, solui constituit, actione constitutae pecuniae non in solidum, sed in quantum facere potest conuenitur: causam enim et originem constitutae pecuniae, non iudicii potestatem praeualere placuit.
[HERMOGENIANUS, from the sixth book of Epitomes of Law.] He who has promised to pay what he had promised to a stipulator on account of a donation is sued in an action on a promise to pay money, not for the whole amount, but to the extent of his ability to pay; for it has been decided that the cause and origin of the promised money prevail over the power of the judgment.
sed et condemnatus ex causa donationis in actione iudicati non frustra desiderat in quantum facere potest conueniri.
But even a person condemned on account of a donation does not in vain desire to be sued in an action on the judgment to the extent of his ability to pay.
§39.5.33.1Ea lege donationis causa pecunia Titio numerata, ut statim donatori mutuo detur, non impeditur dominii translatio: ac propterea isdem nummis donatori creditis nouum dominium in his quaeritur.
If money is paid to Titius on account of a donation on the condition that it should immediately be given back to the donor as a loan, the transfer of ownership is not prevented; and therefore, when the same coins are lent to the donor, a new ownership in them is acquired.
§39.5.33.2Mutus et surdus donare non prohibentur.
The dumb and the deaf are not prohibited from making a donation.
§39.5.33.3Si, cum Primus tibi donare uellet et tu donandi Secundo uoluntatem haberes, Primus Secundo ex uoluntate tua stipulanti promiserit, perficitur donatio et, quia nihil Primus Secundo, a quo conuenitur, donauit, et quidem in solidum, non in id quod facere potest condemnatur.
If, when Primus wished to make a donation to you and you had the intention of making a donation to Secundus, Primus, in accordance with your will, made a promise to Secundus who stipulated for it, the donation is completed; and because Primus made no donation to Secundus, by whom he is sued, he is condemned indeed for the whole amount, and not to the extent of his ability to pay.
idque custoditur et si delegante eo, qui donationem erat accepturus, creditori eius donator promiserit: et hoc enim casu creditor suum negotium gerit.
And this is also observed if, at the delegation of the person who was to receive the donation, the donor made a promise to his creditor; for in this case also the creditor is conducting his own business.

Notes

  1. §39.5.33.prin quantum facere potest — A legal idiom meaning "to the extent of his ability to pay." It refers to the "benefit of competence" (beneficium competentiae), which allows a debtor to perform an obligation within the limits of his means without being reduced to total destitution.
  2. §39.5.33.prcausam enim et originem constitutae pecuniae, non iudicii potestatem praeualere placuit — Explains that in an action on a promise to pay (constituta pecunia), if the original underlying debt (originem) is a donation, its nature (application of the benefit of competence) is preserved. The substantive cause prevails over the formal judicial power of the action (iudicii potestatem).
  3. §39.5.33.3quia nihil Primus Secundo, a quo conuenitur, donauit — Demonstrates the structure of the underlying relationships. Primus (the donor) made a promise to Secundus (the third party) to indirectly perform the donation to you and your donation to Secundus in one step; there is no direct relationship of donation between Primus and Secundus. Therefore, when sued by Secundus, Primus cannot claim the benefit of competence, which is only granted against a direct donee.
  4. §39.5.33.3delegante eo — An ablative absolute meaning "at the delegation of him." It describes a situation where the prospective donee delegates (delegatio) the donor to promise or perform the obligation to his creditor instead of himself.

Cite this passage

Justinian I, The Digest of Justinian §39.5.33.pr-39.5.33.3. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:39.5.33.pr-39.5.33.3

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