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Justinian I · The Digest of Justinian §45.2.11.pr-45.2.11.2

Mutual Suretyship of Joint Promisors and Equal Division

Passage 7500 of 9271 · Latin

Summary

The text explains the validity of joint promisors acting as sureties for each other and the rules for dividing actions against them, and states that unless a written agreement explicitly creates solidarity, the debts or claims are presumed to be divided into equal shares.

[IDEM libro undecimo responsorum. ] §45.2.11.prReos promittendi uice mutua fideiussores non inutiliter accipi conuenit.
[THE SAME in the eleventh book of Opinions.] It is agreed that joint promisors may validly be accepted as sureties for each other.
reus itaque stipulandi actionem suam diuidere si uelit (neque enim diuidere cogendus est), poterit eundem ut principalem reum, item qui fideiussor pro altero exstitit, in partes conuenire, non secus ac si duos promittendi reos diuisis actionibus conueniret.
Therefore, if the stipulator wishes to divide his action (for he is not compelled to divide it), he can sue the same person as the principal debtor, and likewise the one who stood as surety for the other, for their respective parts, just as if he were suing two joint promisors by divided actions.
§45.2.11.1Cum tabulis esset comprehensum 'illum et illum centum aureos stipulatos' neque adiectum 'ita ut duo rei stipulandi essent', uirilem partem singuli stipulati uidebantur.
When it was contained in a written document that "so-and-so and so-and-so stipulated for a hundred aurei," and there was no addition "so that they should be two joint stipulators," they were deemed to have stipulated each for an equal share.
§45.2.11.2Et e contrario cum ita cautum inueniretur: 'tot aureos recte dari 'stipulatus est Iulius Carpus, spopondimus ego Antoninus Achilleus et Cornelius Dius', partes uiriles deberi, quia non fuerat adiectum singulos in solidum spopondisse, ita ut duo rei promittendi fierent.
And conversely, when it was found to be provided thus: "Julius Carpus stipulated for so many aurei to be rightly given, and we, Antoninus Achilleus and Cornelius Dius, promised," it was held that equal shares were owed, because there had been no addition that each had promised for the whole, so that they should become two joint promisors.

Notes

  1. §45.2.11.prnon inutiliter — Double negation (non + inutiliter "not uselessly") expresses a strong affirmation "validly" (utiliter). It modifies the accusative with infinitive clause "reos... accipi", which serves as the subject of "conuenit" (it is agreed/fitting).
  2. §45.2.11.preundem ut principalem reum, item qui fideiussor pro altero exstitit — The structural objects of the verb "conuenire" (to sue/summon). "eundem" (the same person [as principal debtor]) is coordinated by "item" with the relative clause "[eum] qui fideiussor pro altero exstitit" (him who stood as surety for the other), where the antecedent "eum" is omitted.
  3. §45.2.11.2partes uiriles deberi — An accusative with infinitive clause that expresses the substantive content of the passive verbal phrase "cautum inueniretur" (it was found to be provided/stipulated) inside the "cum" clause.

Cite this passage

Justinian I, The Digest of Justinian §45.2.11.pr-45.2.11.2. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:45.2.11.pr-45.2.11.2

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