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Justinian I · The Digest of Justinian §40.7.35.pr

Retention of Peculium and Inability to Pay by Statuliber

Passage 6506 of 9271 · Latin

Summary

Explains that in the case of a conditionally manumitted slave with a peculium, if the slave cannot make the payment for freedom because the seller retains the peculium, the failure is imputed to the slave and the condition is deemed unfulfilled.

[IDEM libro nono responsorum. ] §40.7.35.prNon uidebitur per statuliberum non stare, quo minus condicio libertatis existat, si de peculio, quod apud uenditorem seruus habuit, pecuniam condicionis offerre non possit: ad alienum enim peculium uoluntas defuncti porrigi non potuit.
[THE SAME, from the ninth book of Opinions.] It will not be deemed that it is not due to the conditionally manumitted slave that the condition of freedom does not exist, if he cannot offer the money for the condition out of the peculium which the slave had with the seller; for the will of the deceased could not extend to another's peculium.
idem erit et si cum peculio seruus uenierit et uenditor fide rupta peculium retinuerit: quamquam enim ex empto sit actio, tamen apud emptorem peculium seruus non habuit.
The same will hold even if the slave was sold with his peculium and the seller, in breach of faith, retained the peculium; for although there is an action on purchase, nevertheless the slave did not have the peculium with the buyer.

Notes

  1. §40.7.35.prnon uidebitur per statuliberum non stare, quo minus — A highly complex construction with multiple negations. The phrase 'stare per aliquem, quo minus...' means 'it is due to someone that ... does not happen' (i.e., someone is responsible for the failure). This is negated impersonally as 'non stare per statuliberum, quo minus...' ('it is not due to the conditionally manumitted slave that...'), which is further negated by 'non uidebitur' ('it will not seem / be deemed'). The net result is affirmative: 'it will be deemed to be due to the conditionally manumitted slave that the condition is not fulfilled.'
  2. §40.7.35.prex empto sit actio — Refers to the 'action on purchase' (actio ex empto) available to the buyer against the seller. If a slave was sold with his peculium but the seller failed to deliver it, the buyer (the current owner) could bring this contractual action to demand delivery or damages. Although this legal remedy exists between the transacting parties, the text explains that for the slave himself, since the peculium is not factually present with his current master (the buyer), he cannot offer the money from it, and this failure is imputed to him.

Cite this passage

Justinian I, The Digest of Justinian §40.7.35.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:40.7.35.pr

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