Humanitext Reader

Justinian I · The Digest of Justinian §45.1.49.pr-45.1.49.3

Default by a Filiafamilias or Heir and Liability

Passage 7396 of 9271 · Latin

Summary

Paulus discusses how default and failure to act by a son under patriarchal power, an heir, or a guarantor affect liability, and whether liability arises when the subject of an obligation dies after a premature demand.

[PAULUS libro trigensimo septimo ad edictum. ] §45.1.49.prCum filius familias Stichum dari spoponderit et, cum per eum staret, quo minus daret, decessit Stichus, datur in patrem de peculio actio, quatenus maneret filius ex stipulatu obligatus.
[PAULUS, in the thirty-seventh book on the Edict.] When a filius familias has promised that Stichus be given, and, while it was due to him that he was not given, Stichus died, an action on the peculium is granted against the father, to the extent that the son remains bound under the stipulation.
at si pater in mora fuit, non tenebitur filius, sed utilis actio in patrem danda est.
But if the father was in delay, the son will not be held liable, but a useful action must be granted against the father.
quae omnia et in fideiussoris persona dicuntur.
All of which is also said in the case of a guarantor.
§45.1.49.1Si stipulatus sim 'per te non fieri, quo minus mihi ire agere liceat' et fideiussorem accepero: si per fideiussorem steterit, neuter tenetur, si per promissorem, uterque.
If I have stipulated 'that it shall not be due to you that I am prevented from passing and driving', and I have received a guarantor: if it was due to the guarantor, neither is held liable; if due to the promisor, both.
§45.1.49.2In hac stipulatione: 'neque per te neque per heredem tuum fieri?' per heredem uidetur fieri, quamuis absit et ignoret et ideo non facit, quod fieri ex stipulatu oportet.
In this stipulation: 'that it shall be due neither to you nor to your heir that I am prevented?', it is deemed to be due to the heir, even though he is absent and ignorant, and therefore does not do what ought to be done under the stipulation.
non uidetur autem per pupillum stetisse ex huiusmodi stipulatione, si pupillus heres erit.
However, it is not deemed to have been due to a pupil, under a stipulation of this kind, if a pupil shall be the heir.
§45.1.49.3Si promissor hominis ante diem, in quem promisserat, interpellatus sit et seruus decesserit, non uidetur per eum stetisse.
If the promisor of an unspecified slave has been called upon before the day on which he had promised, and the slave has died, it is not deemed to have been due to him.

Notes

  1. §45.1.49.prcum per eum staret, quo minus daret — An idiomatic expression stare per aliquem, quo minus... meaning "it is due to someone that ... is not done" or "someone is the cause of preventing ...". Here it refers to the son's liability (default) for the delay in performance.
  2. §45.1.49.1ire agere — Meaning "to pass and drive", referring to the exercise of the servitudes of footway (iter) and right of way for cattle or vehicles (actus) in Roman law.
  3. §45.1.49.2non uidetur autem per pupillum stetisse — Indicates that because a pupil (pupillus) has limited capacity to act, even if he becomes an heir, liability (stetisse) is in principle not imputed to him for a mere failure to act in breach of the stipulation.

Cite this passage

Justinian I, The Digest of Justinian §45.1.49.pr-45.1.49.3. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:45.1.49.pr-45.1.49.3

Please note the AI-draft status of the translation and the date accessed.

Translation, notes and summary are AI-generated drafts, revised through reader feedback.