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Justinian I · The Digest of Justinian §45.1.58.pr

Effects of Successive Stipulations and Novation

Passage 7405 of 9271 · Latin

Summary

This section explains the legal effects of cumulative or sequential stipulations involving land, rights of way, usufruct, and money, based on inclusion relations (part and whole) and the exception of novation.

[IDEM libro quinquagensimo quarto digestorum. ] §45.1.58.prQui usum fructum fundi stipulatur, deinde fundum, similis est ei, qui partem fundi stipulatur, deinde totum, quia fundus dari non intellegitur, si usus fructus detrahatur.
[THE SAME, in the fifty-fourth book of the Digests.] He who stipulates for the usufruct of a tract of land, and then for the land itself, is like him who stipulates for a part of the land, and then for the whole, because a tract of land is not understood to be given if the usufruct is deducted.
et e contrario qui fundum stipulatus est, deinde usum fructum, similis est ei, qui totum stipulatur, deinde partem.
And conversely, he who has stipulated for a tract of land, and then for the usufruct, is like him who stipulates for the whole, and then for a part.
sed qui actum stipulatur, deinde iter, posteriore stipulatione nihil agit, sicuti qui decem, deinde quinque stipulatur, nihil agit.
But he who stipulates for a right of driving, and then for a right of passage, achieves nothing by the subsequent stipulation, just as he who stipulates for ten, and then for five, achieves nothing.
item si quis fructum, deinde usum stipulatus fuerit, nihil agit.
Likewise, if anyone has stipulated for the fruits, and then for the usufruct, he achieves nothing.
nisi in omnibus nouandi animo hoc facere specialiter expresserit: tunc enim priore obligatione exspirante ex secunda introducitur petitio et tam iter quam usus nec non quinque exigi possunt.
Unless in all these cases he has specially expressed that he does this with the intention of novating; for then, the prior obligation expiring, the claim is introduced from the second, and both the right of passage and the usufruct, as well as the five, can be demanded.

Notes

  1. §45.1.58.prnihil agit — A Latin legal idiom meaning "produces no (legal) effect" or "achieves nothing." It indicates that when two overlapping objects (a broader right followed by a narrower one, or a larger sum followed by a smaller one) are stipulated in succession, the latter contract has no legal effect.
  2. §45.1.58.prnisi in omnibus nouandi animo hoc facere specialiter expresserit — A conditional clause introduced by the conjunction 'nisi' (unless, except if). The subject is indefinite, corresponding to the preceding 'qui' or 'quis'. The phrase 'nouandi animo' (with the intention of novating) is an ablative of manner/attendant circumstance, referring to the subjective intent of the parties (animus novandi) to extinguish the old obligation and create a new one.
  3. §45.1.58.prpriore obligatione exspirante — An ablative absolute construction using the present participle 'exspirante'. It expresses a temporal or causal relationship ('as the prior obligation expires' / 'by the expiration of the prior obligation'), serving as the prerequisite for the subsequent main clause 'ex secunda introducitur petitio' (the claim is introduced from the second stipulation, i.e., the broader/larger obligation is novated into the narrower/smaller one).

Cite this passage

Justinian I, The Digest of Justinian §45.1.58.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:45.1.58.pr

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