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Justinian I · The Digest of Justinian §45.1.8.pr-45.1.8.1

Timing of Action on Stipulations upon Prior Impossibility

Passage 7354 of 9271 · Latin

Summary

The passage discusses whether a lawsuit can be initiated immediately before the Kalends for a stipulation triggered by the non-delivery of a slave, should the slave die before the date, contrasting the view that the plaintiff must wait with cases involving impossible conditions.

[PAULUS libro secundo ad Sabinum. ] §45.1.8.prIn illa stipulatione: 'si kalendis Stichum non dederis, decem dare spondes?' mortuo homine quaeritur, an statim ante kalendas agi possit.
[PAULUS, in the second book on Sabinus.] In the following stipulation: 'If you do not deliver Stichus on the Kalends, do you promise to give ten?', when the slave dies, the question is raised whether an action can be brought immediately before the Kalends.
§45.1.8.1Sabinus Proculus exspectandum diem actori putant, quod est uerius: tota enim obligatio sub condicione et in diem collata est et licet ad condicionem committi uideatur, dies tamen superest.
Sabinus and Proculus think that the plaintiff must await the day, which is more correct; for the entire obligation was contracted under a condition and for a day, and although it may seem to be incurred upon the condition, the day nevertheless remains.
sed cum eo, qui ita promisit: 'si intra kalendas digito caelum non tetigerit', agi protinus potest.
But against one who has promised thus: 'If he does not touch the sky with his finger within the Kalends', an action can be brought immediately.
haec et Marcellus probat.
Marcellus also approves of this.

Notes

  1. §45.1.8.prmortuo homine — Ablative absolute. The word 'homo' (man/human) specifically refers to the slave Stichus mentioned in the preceding formulation of the stipulation, establishing the premise that the object of the delivery has died before the due date.
  2. §45.1.8.1exspectandum diem actori — In the accusative and infinitive clause (object of 'putant'), this is a passive periphrastic conjugation with 'exspectandum' (gerundive) and the ellipsis of 'esse'. 'actori' is a dative of agent, expressing the obligation: 'that the plaintiff must await the day'.
  3. §45.1.8.1ad condicionem committi — The passive infinitive 'committi' is used here as a legal term meaning 'to be incurred' or 'to come into effect' upon the fulfillment of a condition. It conveys that although the obligation may seem to have been triggered by the failure of the condition (the non-delivery due to death).

Cite this passage

Justinian I, The Digest of Justinian §45.1.8.pr-45.1.8.1. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:45.1.8.pr-45.1.8.1

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