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Justinian I · The Digest of Justinian §4.8.29.pr

Penalties for Claims against Sureties or Principal Debtors

Passage 850 of 9271 · Latin

Summary

Ulpianus discusses whether a penalty is incurred if a demand is made from a surety instead of the forbidden debtor, and also explains the case where an arbitration agreement is made with a surety and a demand is made from the principal debtor.

[ULPIANUS libro tertio decimo ad edictum. ] §4.8.29.prAduersus sententiam arbitri fit, si petatur ab eo a quo arbiter peti uetuit.
[ULPIANUS in his thirteenth book on the Edict.] An act is done contrary to the decision of the arbitrator if a demand is made from the person from whom the arbitrator forbade a demand to be made.
quid ergo si a fideiussore eius petatur, an poena committatur? et puto committi, et ita Sabinus scribit: nam τῃ Δυνάμει a reo petit.
What then if a demand is made from his surety? Is the penalty incurred? I think it is incurred, and Sabinus writes so; for in effect he demands from the principal debtor.
sed si cum fideiussore compromisi et a reo petatur, nisi intersit fideiussoris, non committetur.
But if I have entered into an arbitration agreement with a surety and a demand is made from the principal debtor, the penalty will not be incurred, unless it concerns the surety.

Notes

  1. 4.8.29.prpeti uetuit — The passive infinitive peti (to be demanded) is used as the object of uetuit (forbade). The phrase means 'the arbitrator forbade [a demand] to be made [from him]'.
  2. 4.8.29.prτῃ Δυνάμει — Transliteration of the Greek τῇ δυνάμει (virtually, in effect). It explains that demanding from the surety is equivalent in effect to demanding from the principal debtor, as it ultimately affects the latter.
  3. 4.8.29.printersit fideiussoris — The subjunctive present of the impersonal verb interest (it concerns, it matters), which takes the genitive of the person concerned (fideiussoris). Unless the surety has some specific interest of his own, a demand from the principal debtor does not constitute a breach of the arbitration agreement made with the surety.

Cite this passage

Justinian I, The Digest of Justinian §4.8.29.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:4.8.29.pr

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