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Justinian I · The Digest of Justinian §44.1.7.pr-44.1.7.1

Exceptions in Rem and in Personam Regarding Sureties

Passage 7196 of 9271 · Latin

Summary

The text establishes the principle that exceptions adhering to the person do not pass to sureties, whereas exceptions adhering to the thing are available to them, illustrating both cases with specific examples.

[IDEM libro tertio ad Plautium. ] §44.1.7.prExceptiones, quae personae cuiusque cohaerent, non transeunt ad alios, ueluti ea quam socius habet exceptionem 'quod facere possit', uel parens patronusue, non competit fideiussori: sic mariti fideiussor post solutum matrimonium datus in solidum dotis nomine condemnatur. §44.1.7.1Rei autem cohaerentes exceptiones etiam fideiussoribus competunt, ut rei iudicatae, doli mali, iurisiurandi, quod metus causa factum est.
[THE SAME in the third book on Plautius.] which adhere to the person of anyone do not pass to others; for example, the exception "to the extent of his ability" which a partner, or a parent, or a patron has, is not available to a surety. Thus, a surety given for a husband after the dissolution of marriage is condemned for the whole amount under the head of dowry. the other hand, exceptions which adhere to the thing are available also to sureties, such as those of res judicata, fraud, oath, or that something was done under the influence of fear.
igitur et si reus pactus sit in rem, omnimodo competit exceptio fideiussori.
Therefore, even if the principal debtor has made an agreement in rem, an exception is in any case available to the surety.
intercessionis quoque exceptio, item quod libertatis onerandae causa petitur, etiam fideiussori competit.
An exception of intercession, and likewise when a claim is made for the purpose of burdening liberty, is also available to the surety.
idem dicitur et si pro filio familias contra senatus consultum quis fideiusserit, aut pro minore uiginti quinque annis circumscripto: quod si deceptus sit in re, tunc nec ipse ante habet auxilium, quam restitutus fuerit, nec fideiussori danda est exceptio.
The same is said if someone has become surety for a filiusfamilias contrary to the senatusconsultum, or for a minor under twenty-five years of age who has been defrauded. But if he has been deceived in the transaction, then neither does he himself have relief until he has been restored, nor should the exception be granted to the surety.

Notes

  1. §44.1.7.prexceptionem 'quod facere possit' — An expression referring to the "benefit of competence" (beneficium competentiae), by which a debtor is only obligated to perform to the extent of their financial ability. Since this is an exception adhering to the person of the debtor (exceptio personae cohaerens), it does not extend to the surety (fideiussor).
  2. §44.1.7.1pactus sit in rem — Refers to an agreement not to sue made with respect to the thing (pactum de non petendo in rem), where the effect of the release is not limited to the person of the debtor but applies to the obligation itself. Consequently, the exception arising from this agreement adheres to the thing (exceptio rei cohaerens) and can be used by the surety.
  3. §44.1.7.1restitutus fuerit — Refers to a minor who defrauded in a transaction receiving a decree of "reintegration to the original state" (restitutio in integrum) from the praetor. Until the minor obtains this relief and the transaction itself is set aside, neither the principal nor the surety is in a position to immediately raise an exception based on that fraud.

Cite this passage

Justinian I, The Digest of Justinian §44.1.7.pr-44.1.7.1. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:44.1.7.pr-44.1.7.1

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