Humanitext Reader

Justinian I · The Digest of Justinian §44.4.15.pr

Guarantor's Offer of Performance and Fraud Defense

Passage 7278 of 9271 · Latin

Summary

To the question of whether a guarantor condemned for eviction, who is ready to perform everything, can block the buyer's action with an exception based on the judgment, it is answered that the exception is admissible, but the judge must ensure the buyer's damages are satisfied.

[SCAEUOLA libro quinto responsorum. ] §44.4.15.prFideiussor euictionis nomine condemnatus id praedium, quod euictum est, et omnia praestare paratus est, quae iure empti continentur: quaero, an agentem emptorem exceptione ex causa iudicati doli mali summouere potest.
[SCAEVOLA in the fifth book of Opinions.] A guarantor who has been condemned on account of eviction is ready to deliver the estate which has been evicted and all things that are included in the right of purchase: I ask whether he can bar the buyer who is bringing an action, by an exception of fraud based on the judgment.
respondit exceptionem quidem opponi posse, iudicem autem aestimaturum, ut pro damnis emptori satisfiat.
He answered that the exception can indeed be opposed, but the judge will estimate in order that satisfaction may be made to the buyer for his damages.

Notes

  1. §44.4.15.pran ... potest — After the conjunction `an` introducing an indirect question, the indicative present `potest` is used instead of the classical subjunctive. This reflects colloquial or late Latin usage, or potential manuscript variation.
  2. §44.4.15.prexceptione ex causa iudicati doli mali — This is understood as `exceptione [doli mali] ex causa iudicati`, i.e., "an exception of fraud based on the ground of a judgment." It refers to the defence used to block the buyer who, despite the guarantor's readiness to perform, still seeks to proceed on the basis of the judgment, which is deemed as "bad faith" (dolus malus).
  3. §44.4.15.priudicem autem aestimaturum — This is an accusative with infinitive (A.C.I.) construction dependent on the main verb `respondit`, with `esse` omitted after the future active participle `aestimaturum`. The following `ut... satisfiat` clause indicates the object or result of the judge's evaluation (aestimare).

Cite this passage

Justinian I, The Digest of Justinian §44.4.15.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:44.4.15.pr

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