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Justinian I · The Digest of Justinian §45.1.138.pr-45.1.138.1

Timing of Demand during Markets and Alternative Obligations

Passage 7486 of 9271 · Latin

Summary

The text discusses the dispute between the Sabinian and Proculian schools regarding the timing of demands for performance during a specific market, and the debtor's right to change their choice in an unconditional alternative obligation.

[IDEM libro quarto stipulationum. ] §45.1.138.prEum, qui certarum nundinarum diebus dari stipuletur, primo die petere posse Sabinus ait: Proculus autem et ceteri diuersae scholae auctores, quamdiu uel exiguum tempus ex nundinarum spatio superesset, peti posse existimant.
[The same, Stipulations, book 4.] Sabinus says that he who stipulates for something to be given on the days of a certain market can demand it on the first day; but Proculus and the other authorities of the opposite school think that it can be demanded as long as even a small amount of time from the duration of the market remains.
sed ego cum Proculo sentio.
But I agree with Proculus.
§45.1.138.1Cum pure stipulatus sum illud aut illud dari, licebit tibi, quotiens uoles, mutare uoluntatem in eo quod praestaturus sis, quia diuersa causa est uoluntatis expressae et eius quae inest.
When I have unconditionally stipulated for either this or that to be given, you will be permitted, as often as you wish, to change your mind regarding what you are going to perform, because the case of an expressed will is different from that which is implied.

Notes

  1. §45.1.138.prpeti posse — In the Latin text, 'peti posse' (can be demanded) is written without a negative particle. Under this reading, while Sabinus claims that the demand can be made only on the first day, Proculus and his school argue that the demand can be made 'at any time' as long as the market period has not entirely expired. Although some manuscripts and editions read 'non posse peti' (cannot be demanded), suggesting that the debtor enjoys the benefit of the time limit until the very end, we follow the provided text and translate it as affirmative.
  2. §45.1.138.1eius quae inest — Understood by supplying the ellipsis of 'uoluntatis' as 'eius [uoluntatis] quae inest'. 'Inest' refers to what is 'inherent' or 'implied' in the contract or expression of will, contrasted with the explicitly stated will ('uoluntatis expressae').

Cite this passage

Justinian I, The Digest of Justinian §45.1.138.pr-45.1.138.1. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:45.1.138.pr-45.1.138.1

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