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Justinian I · The Digest of Justinian §45.1.53.pr

Drafting of Stipulations and the Clause of Fraud

Passage 7400 of 9271 · Latin

Summary

Julianus discusses that the most appropriate way to draft stipulations is to explicitly include all foreseeable specific matters, while leaving unforeseen and uncertain events to be covered by the clause of fraud.

[IULIANUS libro sexto decimo digestorum. ] §45.1.53.prStipulationes commodissimum est ita componere, ut, quaecumque specialiter comprehendi possint, contineantur, doli autem clausula ad ea pertineat, quae in praesentia occurrere non possint et ad incertos casus pertinent.
[JULIANUS, in the sixteenth book of the Digests.] It is most convenient to draft stipulations in such a way that whatever can be specifically included is contained in them, while the clause concerning fraud applies to those matters which cannot occur to the mind at present and pertain to uncertain events.

Notes

  1. §45.1.53.prita componere, ut — The adverb `ita` (in such a way) and the conjunction `ut` (that / so that) are used correlatively to introduce a clause of result or purpose showing the desirable method of drafting (`componere`) stipulations.
  2. §45.1.53.prdoli autem clausula — Refers to the "clause of fraud" (clausula doli) in Roman law. This was a standard clause inserted to comprehensively prohibit any fraudulent conduct or bad faith in the execution of a contract, serving to cover contingencies that could not be individually foreseen at the time of contracting.
  3. §45.1.53.proccurrere non possint et ad incertos casus pertinent — Among the two verbs introduced by the relative pronoun `quae`, `possint` is in the present subjunctive, while `pertinent` is in the present indicative, showing a grammatical asymmetry. The latter likely retains the indicative mood to state an objective, general fact ("which pertain to uncertain events").

Cite this passage

Justinian I, The Digest of Justinian §45.1.53.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:45.1.53.pr

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