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Justinian I · The Digest of Justinian §42.8.18.pr

Revocation of Fraudulent Release of Pledges

Passage 7020 of 9271 · Latin

Summary

This section explains that even if a release of a pledge between spouses does not constitute a valid donation, it will be revoked by an equitable action if done to defraud creditors, and the same applies to any debtor who releases a pledge in fraud of creditors.

[PAPINIANUS libro uicensimo sexto quaestionum. ] §42.8.18.prEtsi pignus uir uxori uel uxor uiro remiserit, uerior sententia est nullam fieri donationem existimantium.
[PAPINIANUS in the twenty-sixth book of Questions.] Even if a husband has released a pledge to his wife, or a wife to her husband, the opinion of those who think that no donation is made is the truer one.
quod sine dubio, si in fraudem creditorum fiat, actione utili reuocabitur.
Without doubt, if this is done in fraud of creditors, it will be revoked by an equitable action.
idemque est et si quiuis debitor in fraudem creditorum pignus omiserit.
And the same is true also if any debtor has released a pledge in fraud of creditors.

Notes

  1. 42.8.18.prexistimantium — Genitive plural of the present participle existimans. It modifies the omitted antecedent eorum (of those), establishing the construction 'uerior sententia est eorum existimantium...' (the opinion of those who think... is the truer one). This refers to the jurists who hold that such a release does not constitute a valid donation due to the prohibition of gifts between spouses.
  2. 42.8.18.practione utili — An 'equitable action' (actio utilis), referring to an action extended by the praetor on grounds of equity to cases that do not meet the strict requirements of the original direct action. Here, it indicates that a remedy for defrauding creditors is granted even if the strict civil law criteria for the direct action are not met.

Cite this passage

Justinian I, The Digest of Justinian §42.8.18.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:42.8.18.pr

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