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Justinian I · The Digest of Justinian §45.1.36.pr

Deceit and the Defense of Fraud in Stipulations

Passage 7382 of 9271 · Latin

Summary

Explains the applicability of the defense of fraud when one is bound to a different obligation through deceit despite a contrary agreement, and notes that the same defense applies when the act of suing itself constitutes fraud.

[ULPIANUS libro quadragensimo octauo ad Sabinum. ] §45.1.36.prSi quis, cum aliter eum conuenisset obligari, aliter per machinationem obligatus est, erit quidem suptilitate iuris obstrictus, sed doli exceptione uti potest: quia enim per dolum obligatus est, competit ei exceptio.
[ULPIAN, in the forty-eighth book on Sabinus.] If anyone, although it had been agreed that he should be bound in one way, has been bound in another way through machination, he will indeed be bound by the subtlety of the law, but he can employ the defense of fraud: for because he was bound through fraud, the plea is available to him.
idem est et si nullus dolus intercessit stipulantis, sed ipsa res in se dolum habet: cum enim quis petat ex ea stipulatione, hoc ipso dolo facit, quod petit.
The same is true even if no fraud on the part of the stipulator intervened, but the transaction itself contains fraud in itself; for when anyone sues on the basis of that stipulation, by the very fact that he sues, he acts with fraud.

Notes

  1. §45.1.36.prcum aliter eum conuenisset obligari — The conjunction cum is used here with the subjunctive to express concession ("although"). The verb conuenisset is the impersonal form of conuenit ("it is agreed") in the pluperfect subjunctive, taking the accusative with infinitive (AcI) construction eum ... obligari ("that he should be bound") as its subject.
  2. §45.1.36.prsuptilitate iuris — Ablative of respect or point of view. It refers to the "subtlety of the law" (strict civil law, ius civile), which is contrasted here with the equitable relief of the defense of fraud (exceptio doli) granted by praetorian law.
  3. §45.1.36.prhoc ipso dolo facit, quod petit — The clause quod petit is an explanatory quod clause ("in that he sues"), which defines the substance of the demonstrative phrase hoc ipso ("by this very fact"). The structure means "by the very fact that he sues, he acts with fraud (dolo facit)."

Cite this passage

Justinian I, The Digest of Justinian §45.1.36.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:45.1.36.pr

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