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Justinian I · The Digest of Justinian §45.3.9.pr-45.3.9.1

Stipulation by a Common Slave for a Master's Property or Alternatively

Passage 7517 of 9271 · Latin

Summary

This chunk discusses the acquisition of rights when a jointly-owned slave stipulates for a property belonging to one of his masters, and the validity of a stipulation where a slave contracts selectively for either of his masters.

[ULPIANUS libro quadragesimo octauo ad Sabinum. ] §45.3.9.prItem si seruus duorum Titii et Maeuii hominem, qui Titii erat, stipulatus fuerit, ei soli adquirit, cuius non fuit.
[ULPIANUS, from the forty-eighth book on Sabinus.]\n\nLikewise, if a slave owned by two masters, Titius and Maevius, has stipulated for a slave who belonged to Titius, he acquires [the right] only for the one to whom that slave did not belong.
sed si stipulatus sit Stichum sibi et 'Maeuio et Titio dari spondes?', totum eum Maeuio adquirit: quod enim alteri ex dominis adquirere non potest, id ad eum, qui ad obligationem admittitur, pertinet. §45.3.9.1Si, cum duos dominos seruus haberet, stipulatus fuerit illi aut illi dominis suis, quaesitum est, an consistat stipulatio.
But if he has stipulated for Stichus to be given to himself and [asked]: "Do you promise to give him to Maevius and Titius?", he acquires the whole of him for Maevius; for what he cannot acquire for one of the masters belongs to the one who is admitted to the obligation.\n\nIf, while a slave had two masters, he stipulated for [something to be given] "to this one or to that one" of his masters, it was asked whether the stipulation is valid.
Cassius inutilem esse stipulationem scripsit et Iulianus Cassii sententiam probat eoque iure utimur.
Cassius wrote that the stipulation is void, and Julianus approves Cassius' opinion, and we follow this law.

Notes

  1. §45.3.9.prei soli adquirit, cuius non fuit — The antecedent of the relative pronoun cuius is ei (soli), which refers to the other master, Maevius. Based on the principle that one cannot stipulate for what already belongs to oneself, no acquisition is made for Titius, but only for Maevius, to whom the slave did not previously belong.
  2. §45.3.9.prquod enim alteri ex dominis adquirere non potest, id ad eum, qui ad obligationem admittitur, pertinet — The clause quod... non potest is a relative clause modifying the demonstrative pronoun id in the main clause. It explains the legal rule that if an acquisition cannot be made for one of the co-owners (Titius, the original owner), the entire right accrues (pertines) to the other co-owner (Maevius) who is legally capable of entering into the obligation.
  3. §45.3.9.1illi aut illi dominis suis — The phrase illi aut illi represents a disjunctive formulation ('to this one or to that one'). Because the stipulation does not specify which co-owner is to acquire the right but leaves it indefinite ('to either of them'), the Cassian school deemed the stipulation void (inutilis), an opinion approved by Julianus.

Cite this passage

Justinian I, The Digest of Justinian §45.3.9.pr-45.3.9.1. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:45.3.9.pr-45.3.9.1

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