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Justinian I · The Digest of Justinian §45.3.33.pr-45.3.33.1

Stipulation by Order of a Possessor or One Usufructuary

Passage 7541 of 9271 · Latin

Summary

This text discusses the acquisition of rights when a free man or another's slave serving in good faith stipulates by order of the possessor, and when a slave serving two usufructuaries stipulates by order of only one of them.

[IDEM libro quarto decimo ad Plautium. ] §45.3.33.prSi liber homo uel alienus qui bona fide seruit ex re alterius iussu possessoris stipuletur, Iulianus ait liberum quidem sibi adquirere, seruum uero domino, quia iussum domino cohaereat.
[THE SAME, from the fourteenth book on Plautius.] If a free man, or another's slave who serves in good faith, should make a stipulation from the property of another by the order of the possessor, Julian says that the free man indeed acquires for himself, but the slave acquires for his master, because the order adheres to the master.
§45.3.33.1Si duo rei stipulandi usum fructum in seruo habeant uel quibus bona fide seruiebat et iussu unius a debitore stipuletur, ei soli adquirit.
If two joint stipulators have the usufruct in a slave, or if he was serving them in good faith, and he makes a stipulation from a debtor by the order of one of them, he acquires for that one alone.

Notes

  1. §45.3.33.prex re alterius — Here, 'alterius' (of another) refers in context to a third party other than the 'possessor'. It means that when a person held in good faith makes a stipulation not 'from the property of the possessor' (ex re possessoris) but from that of someone else, the right in principle accrues to the party to whom it would normally belong (the free man himself, or the true master of the slave).
  2. §45.3.33.prquia iussum domino cohaereat — This explains the legal reasoning ('quia...') for why, despite the stipulation being made by the order (iussum) of the possessor, the right in the case of a slave accrues to the true master (dominus) rather than the possessor. It indicates that because the foundation of acquisition through a slave lies in the ownership relation, even with the possessor's order, the acquisition is directed to the true master unless the transaction arises from the possessor's own property.
  3. §45.3.33.1quibus bona fide seruiebat — The relative pronoun 'quibus' (dative, object of 'seruiebat') has as its antecedent the 'duo' (two persons) from the preceding clause. It introduces the second conditional clause ('uel...') in parallel with the preceding 'usum fructum... habeant'.

Cite this passage

Justinian I, The Digest of Justinian §45.3.33.pr-45.3.33.1. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:45.3.33.pr-45.3.33.1

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