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Justinian I · The Digest of Justinian §41.1.36.pr

Effect of Delivery and Transfer of Ownership Despite Disagreeing Causae

Passage 6666 of 9271 · Latin

Summary

This fragment discusses that even if the parties agree on the specific object being delivered but disagree on the legal grounds (causae) of the delivery, the delivery remains effective and ownership is successfully transferred, illustrated by several examples.

[IULIANUS libro tertio decimo digestorum. ] §41.1.36.prCum in corpus quidem quod traditur consentiamus, in causis uero dissentiamus, non animaduerto, cur inefficax sit traditio, ueluti si ego credam me ex testamento tibi obligatum esse, ut fundum tradam, tu existimes ex stipulatu tibi eum deberi.
[JULIANUS, Digest, book 13] When we are indeed in agreement as to the actual object which is delivered, but differ as to the grounds, I do not see why the delivery should be ineffective; as for instance, if I believe that I am bound to you under a will to deliver a tract of land, while you think that it is owed to you under a stipulation.
nam et si pecuniam numeratam tibi tradam donandi gratia, tu eam quasi creditam accipias, constat proprietatem ad te transire nec impedimento esse, quod circa causam dandi atque accipiendi dissenserimus.
For even if I should deliver counted money to you for the sake of making a gift, and you should receive it as if it were a loan, it is clear that the ownership passes to you, and that the fact that we differed regarding the ground of giving and receiving is no obstacle.

Notes

  1. §41.1.36.prin corpus quidem quod traditur consentiamus, in causis uero dissentiamus — The cum clause (with consentiamus and dissentiamus in the subjunctive present) expresses concession or contrast. The contrast between quidem and uero emphasizes the agreement on the physical object (corpus) versus the disagreement on the legal ground (causa).
  2. §41.1.36.prueluti si ego credam me ex testamento tibi obligatum esse, ut fundum tradam, tu existimes ex stipulatu tibi eum deberi — Under ueluti si (as for instance, if), two present subjunctive verbs, ego credam and tu existimes, are parallel. The object of credam is the accusative-with-infinitve clause me... obligatum esse (that I am bound), while ut fundum tradam (to deliver the land) is a noun clause dependent on obligatum. The object of existimes is the infinitive clause eum [= fundum] deberi (that it is owed).
  3. §41.1.36.prconstat proprietatem ad te transire nec impedimento esse, quod — Two accusative-with-infinitive clauses, proprietatem ad te transire (that ownership passes to you) and nec [id] impedimento esse (that it is no obstacle), function in parallel as the subject of the impersonal verb constat (it is clear). The word impedimento is a dative of purpose/effect. The quod clause (with dissenserimus in the subjunctive perfect or future perfect) means 'the fact that...' and functions as the subject of or an appositive to the second infinitive clause.

Cite this passage

Justinian I, The Digest of Justinian §41.1.36.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:41.1.36.pr

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