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Justinian I · The Digest of Justinian §45.1.46.pr-45.1.46.3

Validity of Deferred Stipulations and Discretionary Terms

Passage 7393 of 9271 · Latin

Summary

Paulus discusses the validity of stipulations with a deferred payment date, the invalidity of act-based obligations deferred to the time of death, and the effects of conditions based on the promisor's wish.

[PAULUS libro duodecimo ad Sabinum. ] §45.1.46.pr'Centensimis kalendis dari' utiliter stipulamur, quia praesens obligatio est, in diem autem dilata solutio.
[PAULUS, in the twelfth book on Sabinus.] We effectively stipulate 'to be given on the hundredth Kalends', because the obligation is immediate, but the payment is deferred to a certain day.
§45.1.46.1Id autem, quod in facto est, in mortis tempus conferri non potest, ueluti: 'cum morieris, Alexandriam uenire spondes?' §45.1.46.2Si ita stipulatus fuero 'cum uolueris', quidam inutilem esse stipulationem aiunt, alii ita inutilem, si antequam constituas, morieris, quod uerum est.
However, that which consists in an act cannot be deferred to the time of death, for example: 'when you die, do you promise to come to Alexandria?' If I have stipulated thus, 'when you wish', some say that the stipulation is ineffective, others that it is ineffective only if you die before you decide, which is true.
§45.1.46.3Illam autem stipulationem 'si uolueris, dari?' inutilem esse constat.
But it is well established that the following stipulation is ineffective: 'to be given if you wish?'

Notes

  1. §45.1.46.prin diem — Meaning 'to a certain day/future date'. It stands in contrast with the preceding 'praesens obligatio' (an obligation existing immediately), indicating that while the obligation itself arises at once, only its performance (solutio) is deferred (dilata) until the specified day.
  2. §45.1.46.1in facto est — Consisting in an act (or in fact). It refers to an obligation that has as its object a specific act to be performed by the debtor (facere, here 'coming to Alexandria'), as opposed to the transfer of property (dare).
  3. §45.1.46.2ita inutilem — Meaning 'ineffective only in this case (if...)'. The adverb 'ita' anticipatively restricts the scope of inefficacy to the conditional 'si' clause (dying before making a decision). The main verb 'aiunt' (they say) is understood from the preceding clause.
  4. §45.1.46.3si uolueris — A purely potestative condition ('if you wish'). While 'cum uolueris' ('when you wish', serving as a time limit) in the previous section is valid under certain circumstances, a condition that leaves the very existence of the obligation to the sole will of the promisor is ineffective (inutilem) in Roman law.

Cite this passage

Justinian I, The Digest of Justinian §45.1.46.pr-45.1.46.3. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:45.1.46.pr-45.1.46.3

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