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Justinian I · The Digest of Justinian §45.1.90.pr

Accrual of Contractual Penalty After Joinder of Issue

Passage 7437 of 9271 · Latin

Summary

Pomponius explains that if a monthly penalty is stipulated in place of interest should the principal remain unpaid, the penalty continues to accrue even after the principal obligation is brought into court, as long as actual payment has not been made.

[POMPONIUS libro tertio ex Plautio. ] §45.1.90.prCum stipulati sumus pro usuris legitimis poenam in singulos menses, si sors soluta non sit, etiamsi sortis obligatio in iudicium sit deducta, adhuc tamen poena crescit, quia uerum est solutam pecuniam non esse.
[POMPONIUS, On Plautius, Book 3] When we have stipulated, in place of legal interest, for a penalty per month if the principal should not be paid, even if the obligation of the principal has been brought into court, the penalty nevertheless still increases, because it remains true that the money has not been paid.

Notes

  1. §45.1.90.prpro usuris legitimis — The preposition "pro" here means "in place of" or "as a substitute for" (governing the ablative), indicating that the penalty (poena) was agreed upon as an alternative to legal interest.
  2. §45.1.90.prin iudicium sit deducta — The phrase "brought into court" (in iudicium deducta) refers to the joinder of issue (litis contestatio) in Roman law. Although this procedure novates the original obligation into a litigation-based liability, the factual condition "that the money has not been paid" (solutam pecuniam non esse) remains true, so the penalty continues to accrue.

Cite this passage

Justinian I, The Digest of Justinian §45.1.90.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:45.1.90.pr

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