Humanitext Reader

Justinian I · The Digest of Justinian §46.1.14.pr

Extinction of Suretyship by Principal Debtor's Inheritance

Passage 7562 of 9271 · Latin

Summary

Discusses the extinction of the surety's obligation when the principal debtor becomes the heir of the surety, and the application of replications if the debtor attempts to claim the surety's exceptions in subsequent demands.

[IDEM libro quadragensimo septimo digestorum. ] §46.1.14.prCum reus promittendi fideiussori suo heres exstitit, obligatio fideiussoria peremitur.
[THE SAME in the forty-seventh book of the digests.] When the principal debtor has become the heir to his surety, the accessory obligation of suretyship is extinguished.
quid ergo est? tamquam a reo debitum petatur et, si exceptione fideiussori competente usus fuerit, in factum replicatio dari debebit aut doli mali proderit.
What is the consequence then? The debt should be demanded as if from the principal debtor, and if he uses an exception that was available to the surety, a replication on the facts ought to be granted, or a replication of doli mali will be of benefit.

Notes

  1. §46.1.14.prheres exstitit — It indicates that when the principal debtor becomes the heir of the surety (merger or confusio), the accessory obligation of suretyship is extinguished because it merges in the same person, whereas the principal debt itself survives.
  2. §46.1.14.prtamquam a reo debitum petatur — petatur is a present subjunctive (expressing what should happen or is allowed), indicating the legal consequence that "the debt should be demanded as if from the principal debtor" (rather than from the surety). tamquam a reo signifies treating the claim as one against the principal debtor now that the surety's capacity has merged.
  3. §46.1.14.prdoli mali proderit — doli mali (of fraud/bad faith) is a genitive modifying an implied replicatio (replication) from the preceding clause, forming replicatio doli mali (replication of fraud). The verb proderit (will be of benefit) means that the plaintiff can successfully counter the debtor's exception using this replication.

Cite this passage

Justinian I, The Digest of Justinian §46.1.14.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:46.1.14.pr

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