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Justinian I · The Digest of Justinian §4.6.43.pr

Public Absence and Actiones Utiles in Conditional Stipulations

Passage 806 of 9271 · Latin

Summary

It states that if absence on public service occurs, the praetor should grant an actio utilis to relieve the parties regarding conditions in annual stipulations and similar clauses.

[AFRICANUS libro septimo quaestionum. ] §4.6.43.prSi quis stipulatus sit in annos singulos, quoad in Italia esset uel ipse uel promissor, et alteruter rei publicae causa abesse coeperit, officium praetoris est introducere utilem actionem.
[AFRICANUS, Questions, Book VII] If anyone has stipulated for annual payments so long as either he himself or the promisor should be in Italy, and either of them begins to be absent on public service, it is the duty of the praetor to grant an equitable action.
eadem dicemus, et si ita concepta stipulatio fuerit: 'si quinquennio proximo Romae fuerit', uel ita: 'si Romae non fuerit, centum dare spondes?'
We shall say the same even if the stipulation has been formulated in this way: 'if he shall have been in Rome for the next five years,' or in this way: 'if he shall not have been in Rome, do you promise to give one hundred?'

Notes

  1. §4.6.43.prstipulatus sit — The verb stipulari means 'to secure a promise (by questioning)' and refers to the creditor (stipulator) in a verbal contract (stipulatio). Conversely, promissor refers to the party who responds and promises (the debtor).
  2. §4.6.43.prutilem actionem — An 'equitable action' (actio utilis). An action granted by the praetor on grounds of equity (aequitas) by modifying an existing formula, even when the strict requirements of the civil law (ius civile) are not met. Here, it is introduced to relieve a party who suffers disadvantage because the condition was affected by an absence on public service.
  3. §4.6.43.preadem dicemus — Literally 'we shall say the same.' It indicates the juristic opinion that if the subsequent conditions (presence in Rome for five years, or absence from Rome) are obstructed or unintentionally fulfilled due to an absence on public service, the praetor should likewise grant an actio utilis to relieve the party.

Cite this passage

Justinian I, The Digest of Justinian §4.6.43.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:4.6.43.pr

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