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Justinian I · The Digest of Justinian §43.3.2.pr-43.3.2.4

Security and Liability for Delay in the Quod Legatorum Interdict

Passage 7036 of 9271 · Latin

Summary

Paul's explanation of specific requirements for the interdict to recover legacies (quod legatorum). He discusses the scope of sureties' liability in case of subsequent additions, and the allocation of responsibility and the relevant point of time (when the interdict is issued) for assessing delays in providing security.

[PAULUS libro sexagensimo tertio ad edictum. ] §43.3.2.prDiuersum est, si postea pars legato adcreuerit: nam hoc nomine tenentur fideiussores in totum.
[PAULUS, on the Edict, book sixty-three.] It is different if a part is subsequently added to the legacy; for on this account the sureties are liable for the whole.
§43.3.2.1Quod ait praetor 'si per bonorum possessorem non stat, ut satisdetur', sic accipimus, si paratus sit satisdare: non ergo offerre debet satisdationem, sed petenti satis moram non facere.
When the praetor says, "if it is not due to the possessor of goods that security is not given," we understand this as: if he is prepared to give security; therefore, he does not have to offer the security, but only not to cause delay to the one demanding it.
§43.3.2.2Ex hoc interdicto qui non restituit, in id quod interest debet condemnari.
He who does not restore under this interdict ought to be condemned in the amount of the interest.
§43.3.2.3Si legatarius repromissione contentus fuit, dandum est interdictum.
If the legatee was satisfied with a simple promise, the interdict must be granted.
idem dicendum est, si legatarius pignoribus noluit sibi caueri.
The same must be said if the legatee did not wish security to be provided to him by pledges.
§43.3.2.4Si per legatarium factum sit, quo minus satisdetur, licet cautum non sit, tenetur interdicto.
If it was due to the legatee that security was not given, although security has not been provided, he is bound by the interdict.
sed si forte factum sit per legatarium, quo minus satisdetur, eo autem tempore, quo editur interdictum, satis accipere paratus sit, non competit interdictum, nisi satisdatum sit.
But if indeed it was due to the legatee that security was not given, yet at the time when the interdict is issued, he is prepared to accept security, the interdict is not applicable unless security has been given.
item si per bonorum possessorem stetit, quo minus satisdaret, sed modo paratus est cauere, tenet interdictum: illud enim tempus inspicitur, quo interdictum editur.
Likewise, if it was due to the possessor of goods that he did not give security, but now he is prepared to provide security, the interdict is applicable; for that time is inspected at which the interdict is issued.

Notes

  1. 43.3.2.prsi postea pars legato adcreuerit — legato is a dative serving as the complement of the verb adcreuerit (from accresco, meaning 'to be added' or 'to accrue'). This refers to a situation where a subsequent portion (e.g., due to the lapse of another co-legatee's share) accrues to the original legacy.
  2. 43.3.2.1si per bonorum possessorem non stat, ut satisdetur — This is an idiomatic use of the impersonal expression per aliquem stat followed by ut (or quo minus), meaning 'it is due to someone that...'. Here, with the negation non, it means 'unless it is due to the possessor of goods that security is not given'.
  3. 43.3.2.3si legatarius pignoribus noluit sibi caueri — caueri is the present passive infinitive of caueo, used here impersonally with the ablative of means pignoribus ('by pledges') and the dative sibi ('for himself'), meaning 'that security be provided to him'.
  4. 43.3.2.4quo minus satisdetur — The conjunction quo minus (or quominus) introduces a subjunctive clause dependent on expressions of prevention or hindrance (here, factum sit per legatarium, 'it was brought about by the legatee that...'), meaning 'lest' or 'so that... not' (here, 'so that security is not given').

Cite this passage

Justinian I, The Digest of Justinian §43.3.2.pr-43.3.2.4. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:43.3.2.pr-43.3.2.4

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