Humanitext Reader

Justinian I · The Digest of Justinian §45.1.124.pr

Stipulation with a Term and Premature Impossibility

Passage 7472 of 9271 · Latin

Summary

This fragment presents the principle that in a stipulation with a specified term, no breach or right of action arises until the designated day has expired, even if performance has objectively become impossible to achieve within the remaining time.

[IDEM libro secundo definitionum. ] §45.1.124.pr'Insulam intra biennium illo loco aedificari spondes?' ante finem biennii stipulatio non committitur, quamuis reus promittendi non aedificauerit et tantum residui temporis sit, quo aedificium extrui non possit: neque enim stipulationis status, cuius dies certus in exordio fuit, ex post facto mutatur.
[THE SAME, Definitions, book 2.] 'Do you promise that an apartment building shall be built in that place within two years?' Before the end of the two years, the stipulation is not committed, even though the promisor has not built it and so little of the remaining time is left that the building cannot be constructed; for the status of a stipulation, whose day was certain at the start, is not changed by a subsequent fact.
idque et in stipulatione iudicio sistendi causa facta placuit, scilicet ut ante diem stipulatio non committatur, si certum esse coeperit parere stipulationi residuo tempore non posse.
And this has also been accepted in the case of a stipulation made for the purpose of appearing in court, namely, that the stipulation is not committed before the day, even if it has become certain that it is impossible to comply with the stipulation in the remaining time.

Notes

  1. §45.1.124.prnon committitur — The verb 'committere' in the context of a stipulation (stipulatio) with a condition or term means that the condition has occurred or the term has expired, such that the stipulation is breached or the right of action arises. Here, it indicates that before the designated day, no action can be brought even if default is physically inevitable.
  2. §45.1.124.prtantum residui temporis sit, quo — The word 'tantum' is used here restrictively to mean 'so little', which, combined with the relative 'quo' introducing a subjunctive of result ('possit'), means 'so little remaining time is left that [the building] cannot [be constructed]'.
  3. §45.1.124.prparere stipulationi residuo tempore non posse — An accusative and infinitive clause functioning as the subject of the impersonal verb phrase 'certum esse coeperit' (it has begun to be certain). The implied subject of the infinitive 'posse' is 'promissorem' (the promisor), understood from the context (reus promittendi).

Cite this passage

Justinian I, The Digest of Justinian §45.1.124.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:45.1.124.pr

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