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Justinian I · The Digest of Justinian §45.1.112.pr-45.1.112.1

Creditor's Change of Choice and Stipulations for Security

Passage 7459 of 9271 · Latin

Summary

This chunk discusses whether a creditor in an alternative obligation can change their mind after choosing, and outlines how the stipulator's interest is calculated in stipulations for providing security.

[IDEM libro quinto decimo ad Quintum Mucium. ] §45.1.112.prSi quis stipulatus sit Stichum aut Pamphilum, utrum ipse uellet: quem elegerit, petet et is erit solus in obligatione.
[THE SAME, book fifteen on Quintus Mucius.] If anyone should have stipulated for Stichus or Pamphilus, whichever he himself wished: whichever he has chosen, he will demand, and that one alone will be in the obligation.
an autem mutare uoluntatem possit et ad alterius petitionem transire, quaerentibus respiciendus erit sermo stipulationis, utrumne talis sit, 'quem uoluero' an 'quem uolam': nam si talis fuerit 'quem uoluero', cum semel elegerit, mutare uoluntatem non poterit: si uero tractum habeat sermo illius et sit talis 'quem uolam', donec iudicium dictet, mutandi potestatem habebit.
But whether he can change his mind and transition to the demand of the other, those who inquire must look to the language of the stipulation, whether it be such as 'the one I shall have wished' or 'the one I shall wish': for if it should be such as 'the one I shall have wished', once he has chosen, he will not be able to change his mind; but if indeed his language has a continuous extension and is such as 'the one I shall wish', until the trial is set up, he will have the power of changing.
§45.1.112.1Si quis ita stipulatus fuerit: 'pro centum aureis satis dabis?' et reum dederit in istam summam: Proculus ait semper in satisdationis stipulatione uenire, quod interesset stipulantis, ut alias tota sors inesset, ueluti si idoneus promissor non sit, alias minus, si in aliquid idoneus esset debitor, alias nihil, si tam locuples esset, ut nostra non intersit satis ab eo accipere: nisi quod plerumque idonei non tam patrimonio quam fide quoque aestimarentur.
If anyone should have stipulated thus: 'Will you give sufficient security for a hundred aurei?' and has given a debtor for that sum: Proculus says that in a stipulation for giving sufficient security, that which is of interest to the stipulator always enters, so that in some cases the entire principal is included, as for example if the promisor is not solvent; in other cases less, if the debtor is solvent to some extent; in other cases nothing, if he is so wealthy that it is not of interest to us to receive security from him: except that for the most part solvent persons are estimated not so much by their patrimony as also by their good faith.

Notes

  1. §45.1.112.prutrum ipse uellet — Subjunctive imperfect in an indirect question, following the rule of sequence of tenses after the perfect stipulatus sit. The pronoun utrum marks the alternative 'whichever of the two'.
  2. §45.1.112.prquaerentibus — Dative plural of the present participle, acting as a dative of reference or relation ('to those who inquire' or 'for those investigating'), functioning practically as a conditional clause.
  3. §45.1.112.1quod interesset stipulantis — The impersonal verb interest combined with the genitive stipulantis ('what was of interest to the stipulator'). The subjunctive imperfect interesset is required by the indirect discourse introduced by Proculus ait.
  4. §45.1.112.1nisi quod — A conjunctive phrase introducing a restriction or qualification ('except that', 'save only that'), modifying the previous statement by introducing the factor of trustworthiness (fides) in evaluating solvency.

Cite this passage

Justinian I, The Digest of Justinian §45.1.112.pr-45.1.112.1. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:45.1.112.pr-45.1.112.1

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