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Justinian I · The Digest of Justinian §45.1.45.pr-45.1.45.4

Stipulations under Power and Conditions of Death

Passage 7392 of 9271 · Latin

Summary

This passage discusses the validity and effects of stipulations made by persons under another's power, stipulations conditioned upon death, and the presumption that a son's stipulation is for his father.

[ULPIANUS libro quinquagensimo ad Sabinum. ] §45.1.45.prQuodcumque stipulatur is, qui in alterius potestate est, pro eo habetur, ac si ipse esset stipulatus.
[ULPIANUS, in the fiftieth book on Sabinus.] Whatever is stipulated by one who is under the power of another is held as if that person himself had stipulated.
§45.1.45.1Sicuti cum morietur quis stipulari potest, ita etiam hi, qui subiecti sunt alienae potestati, cum morientur stipulari possunt.
Just as anyone can stipulate for when he dies, so also those who are subject to another's power can stipulate for when they die.
§45.1.45.2Si ita quis stipulatus sit: 'post mortem meam filiae meae dari?' uel ita: 'post mortem filiae meae mihi dari?', utiliter erit stipulatus: sed primo casu filiae utilis actio competit, licet heres ei non existat.
If anyone has stipulated thus: 'to be given to my daughter after my death?' or thus: 'to be given to me after the death of my daughter?', he will have stipulated effectively; but in the first case, a beneficial action is available to the daughter, even if she does not become his heir.
§45.1.45.3Non solum ita stipulari possumus: 'cum morieris', sed etiam: 'si morieris': nam sicuti inter haec nihil interest 'cum ueneris' aut 'si ueneris', ita nec ibi interest 'si morieris' et 'cum morieris'.
We can stipulate not only thus: 'when you die', but also: 'if you die'; for just as there is no difference between 'when you come' and 'if you come', so there is no difference there between 'if you die' and 'when you die'.
§45.1.45.4Filius patri dari stipulari uidetur, etsi hoc non adiciat.
A son is deemed to stipulate that payment be made to his father, even if he does not add this.

Notes

  1. §45.1.45.pripse — `ipse` (himself) refers not to the subject of the immediate clause, but to the person who holds power (the paterfamilias or master) implied by `alterius` (of another) in the relative clause. Since the legal effects of a contract made by a subordinate accrue to the superior, it is treated as if the superior himself had made the stipulation.
  2. §45.1.45.2dari — In the formulaic language of stipulations, this passive infinitive serves as the object of the main verb `stipulatus sit` (has stipulated), indicating the content of the promise ('to be given'). The accusative subject is implied.
  3. §45.1.45.2utilis actio — A 'beneficial action' (utilis actio). Under strict civil law, the daughter herself would not have a direct right of action (directa actio), but the praetor grants this adapted or extended action based on equity and practical necessity, allowing her to benefit from the stipulation even if she is not the heir.

Cite this passage

Justinian I, The Digest of Justinian §45.1.45.pr-45.1.45.4. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:45.1.45.pr-45.1.45.4

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