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Justinian I · The Digest of Justinian §42.1.41.pr-42.1.41.2

Mandate of Gift and the Donor's Benefit of Competency

Passage 6893 of 9271 · Latin

Summary

This fragment discusses whether a delegated donor can assert the benefit of competency against the delegator's creditor or other third parties, the restoration of donated land along with its fruits, and the application of the donor's benefit of competency in an action on judgment.

[PAULUS libro quarto decimo quaestionum. ] §42.1.41.prNesennius Apollinaris: si te donaturum mihi delegauero creditori meo, an in solidum conueniendus sis? et si in solidum conueniendus, an diuersum putes, si non creditori meo, sed ei, cui donare uolebam, te delegauero? et quid de eo, qui pro muliere, cui donare uolebat, marito eius dotem promiserit? respondit: nulla creditor exceptione summoueretur, licet is, qui ei delegatus est, poterit uti aduersus eum, cuius nomine promisit: cui similis est maritus, maxime si constante matrimonio petat.
[PAULUS, in the fourteenth book of Questions.]\n\nNesennius Apollinaris: If I delegate you, who are going to make a donation to me, to my creditor, should you be sued for the whole amount? And if you should be sued for the whole amount, would you think it is different if I delegate you not to my creditor, but to the person to whom I wished to make a donation? And what about one who has promised a dowry to her husband on behalf of a woman to whom he wished to make a donation? He replied: The creditor would be barred by no exception, although he who has been delegated to him could use one against the person on whose behalf he promised; to whom the husband is similar, especially if he sues while the marriage is still subsisting.
et sicut heres donatoris in solidum condemnatur et ipse fideiussor, quem in donando adhibuit, ita et ei, cui non donauit, in solidum condemnatur. §42.1.41.1Fundum quis donauit: si non restituat, ut quiuis possessor damnandus est: si autem fundum restituit, fructuum nomine, si non eos consumpsit, in solidum condemnandus est: potuit enim non periclitari, si statim restituisset: si dolo desiit possidere, in litem iurabitur et tanti sequetur condemnatio. §42.1.41.2In solidum condemnatus donator actione iudicati, nisi in quantum facere potest, non tenetur beneficio constitutionis.
And just as the heir of the donor is condemned for the whole amount, and also the surety whom he employed in making the donation, so too is he condemned for the whole amount to the person to whom he did not make the donation.\n\nSomeone has donated a tract of land: if he does not restore it, he is to be condemned just like any possessor; but if he restores the land, he must be condemned for the whole amount on account of the fruits, if he has not consumed them; for he could have avoided the risk if he had restored it immediately; if he has ceased to possess by fraud, the oath in court will be taken, and a condemnation for that amount will follow.\n\nA donor condemned for the whole amount in an action on the judgment is not liable, by the benefit of the constitution, except to the extent of what he is able to do.

Notes

  1. §42.1.41.prte donaturum mihi — 'donaturum' is a future active participle agreeing with 'te', expressing intention or purpose ('you, who are going to make a donation to me'), acting as the object of 'delegauero'.
  2. §42.1.41.prcui similis est maritus — The relative pronoun 'cui' (dative) refers back to the 'creditor'. It indicates that a husband claiming a dowry during the marriage is in a similar position to this creditor, meaning his claim cannot be barred by the delegated donor's exception of the benefit of competency.
  3. §42.1.41.prita et ei, cui non donauit, in solidum condemnatur — The subject of 'condemnatur' is omitted but is the delegated donor ('is, qui ei delegatus est'). It means that when a person promises to pay a third party (like a creditor) to whom he did not intend a direct donation, he cannot enjoy the benefit of competency and must be condemned for the full amount ('in solidum').
  4. §42.1.41.1fructuum nomine... in solidum condemnandus est — It indicates that even if the land itself is restored, the donor must be condemned for the full amount regarding unconsumed fruits, according to the general liability of a possessor, without the limitation of the benefit of competency.

Cite this passage

Justinian I, The Digest of Justinian §42.1.41.pr-42.1.41.2. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:42.1.41.pr-42.1.41.2

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