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Justinian I · The Digest of Justinian §45.1.81.pr-45.1.81.1

Promise to Produce Without Penalty and Interest

Passage 7428 of 9271 · Latin

Summary

For a promise to produce another person made without a penalty clause, it is shown based on Celsus' opinion that the interest in production is included, and the attribution of interest in a similar stipulation made by a procurator is discussed.

[IDEM libro septuagensimo septimo ad edictum. ] §45.1.81.prQuotiens quis alium sisti promittit nec adicit poenam, puta uel seruum suum uel hominem liberum, quaeritur, an committatur stipulatio.
[THE SAME, On the Edict, Book 77] Whenever someone promises that another person will be produced—for example, either his own slave or a free person—and does not add a penalty, it is asked whether the stipulation is committed.
et Celsus ait, etsi non est huic stipulationi additum 'nisi steterit, poenam dari', in id, quanti interest sisti, contineri.
And Celsus says that, although there is not added to this stipulation 'unless he is produced, a penalty shall be given', it is contained in the amount of how much interest there is in his being produced.
et uerum est, quod Celsus ait: nam qui alium sisti promittit, hoc promittit id se acturum, ut stet.
And what Celsus says is true; for he who promises that another will be produced, promises this: that he will act in such a way that the person is produced.
§45.1.81.1Si procurator sisti aliquem sine poena stipulatus sit, potest defendi non suam, sed eius, cuius negotium gessit, utilitatem in ea re deduxisse: idque fortius dicendum, si 'quanti ea res sit' stipulatio proponatur procuratoris.
If a procurator has stipulated that someone be produced without a penalty, it can be defended that he has brought into that matter not his own interest, but the interest of the person whose business he managed; and this must be said even more strongly if a stipulation 'for what that matter is worth' of the procurator is proposed.

Notes

  1. §45.1.81.prin id, quanti interest sisti, contineri — `contineri` is an infinitive in an accusative-with-infinitive construction, where its subject (such as `stipulationem`) is omitted. `id` is the antecedent, and `quanti interest` is a relative clause indicating the value or degree of interest with the genitive of value (`quanti`), depending on the impersonal `interest` which takes the infinitive `sisti` (to be produced) as its subject. The phrase means that the scope of the stipulation is limited to or contained in the amount of the party's interest in the production.
  2. §45.1.81.1utilitatem in ea re deduxisse — `deduxisse` (perfect infinitive of `deduco`) is used here in the sense of "bringing into, introducing, or incorporating" as the object or content of the stipulation (`stipulatus sit`). Its accusative object is `non suam, sed eius ... utilitatem`, meaning that the procurator brought into the stipulation not his own interest, but the interest of the principal (the person whose business he managed).

Cite this passage

Justinian I, The Digest of Justinian §45.1.81.pr-45.1.81.1. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:45.1.81.pr-45.1.81.1

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