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Justinian I · The Digest of Justinian §45.1.50.pr-45.1.50.1

Duty of Care to Perform and Prevention of Receipt

Passage 7397 of 9271 · Latin

Summary

Ulpian explains that the stipulation 'that it shall not be due to you' implies an active duty of care to perform, and that in the sale of an inheritance, a seller who intentionally prevents money from reaching themselves is held liable under the stipulation.

[ULPIANUS libro quinquagensimo ad edictum. ] §45.1.50.prIn illa stipulatione: 'per te non fieri?' non hoc significatur nihil te facturum, quo minus facere possis, sed curaturum, ut facere possis.
[ULPIANUS, in the fiftieth book on the Edict.] In that stipulation: 'that it shall not be due to you?', it is not meant that you will do nothing by which you are prevented from performing, but rather that you will take care that you are able to perform.
§45.1.50.1Item stipulatione emptae hereditatis: 'quanta pecunia ad te peruenerit doloue malo tuo factum est eritue, quo minus perueniat' nemo dubitabit quin teneatur, qui id egit, ne quid ad se perueniret.
Likewise, in the stipulation of a purchased inheritance: 'whatever money has come to you, or has been or will be brought about by your malice, so that it does not come', no one will doubt that he is held liable who has acted so that nothing should come to him.

Notes

  1. §45.1.50.prnihil te facturum, quo minus facere possis, sed curaturum, ut facere possis — These infinitive phrases function as the subject in the accusative-and-infinitive construction dependent on the impersonal passive significatur, with the subject accusative te omitted. It demonstrates that the formula "that it shall not be due to you" implies not merely a passive omission ("that you will do nothing to prevent performance") but an active duty of care ("that you will take care that you are able to perform").
  2. §45.1.50.1stipulatione — This ablative noun without the preposition in expresses relation or place ("in the stipulation"), standing in parallel with In illa stipulatione in the preceding section.
  3. §45.1.50.1qui id egit, ne quid ad se perueniret — This relative clause serves as the subject of the verb teneatur within the subjunctive subordinate clause introduced by quin, with the antecedent (such as is) omitted. The construction id agere ut/ne is an idiomatic expression meaning "to act or contrive so that ... not".

Cite this passage

Justinian I, The Digest of Justinian §45.1.50.pr-45.1.50.1. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:45.1.50.pr-45.1.50.1

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