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Justinian I · The Digest of Justinian §45.2.13.pr

Inheritance of Co-Promisors and Coexistence of Obligations

Passage 7502 of 9271 · Latin

Summary

It explains that when one joint promisor (or joint stipulator) becomes the heir to the other, the two obligations (or rights) do not merge and extinguish each other because they are of equal force, but rather both continue to coexist.

[IDEM libro tertio stipulationum. ] §45.2.13.prSi reus promittendi altero reo heres extiterit, duas obligationes eum sustinere dicendum est.
[THE SAME, in the third book on Stipulations.] If one joint promisor becomes the heir to the other joint promisor, it must be said that he sustains two obligations.
nam ubi quidem altera differentia obligationum esse possit, ut in fideiussore et reo principali, constitit alteram ab altera perimi: cum uero eiusdem duae potestatis sint, non potest repperiri qua altera potius quam alteram consummari.
For where there can be a difference between the obligations, as in the case of a surety and a principal debtor, it is established that one is extinguished by the other; but when the two are of the same force, it cannot be found by what means one should be extinguished rather than the other.
ideoque et si reus stipulandi heres exstiterit, duas species obligationis eum sustinere.
And therefore, even if a joint stipulator becomes the heir, it must be said that he sustains two forms of obligation.

Notes

  1. §45.2.13.praltero reo — Complement of heres exsistere (to become heir). While this verb construction normally takes the dative, the form altero is used here instead of the classical dative alteri of the pronoun alter, in assimilation to the dative/ablative noun reo.
  2. §45.2.13.preiusdem duae potestatis sint — eiusdem potestatis (of the same force) is a genitive of quality (genitivus qualitatis) modifying duae [obligationes]. The subjunctive sint is due to the cum clause expressing reason or contrast.
  3. §45.2.13.prqua altera potius quam alteram consummari — An indirect question following the impersonal passive potest repperiri (it cannot be found) is expressed in an infinitive construction (consummari). It is introduced by qua (by what means/reason), contrasting the nominative altera with the accusative alteram.
  4. §45.2.13.prduas species obligationis eum sustinere — The accusative and infinitive clause (eum sustinere) at the end of the sentence is governed by dicendum est (it must be said) from the beginning of the section. The influence of the main verb continues into the second part introduced by ideoque.

Cite this passage

Justinian I, The Digest of Justinian §45.2.13.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:45.2.13.pr

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