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Justinian I · The Digest of Justinian §46.1.20.pr

Recovery by Master for Payment on Slave's Void Suretyship

Passage 7568 of 9271 · Latin

Summary

It discusses that if a master pays money based on an invalid suretyship of his slave, the recovery of that money must be sought from the creditor who received it, not from the principal debtor.

[IAUOLENUS libro tertio decimo epistularum. ] §46.1.20.prSed et si serui dominus pecuniam soluerit, repetere eam non ab eo pro quo fideiussit, sed ab eo cui numerauit poterit, cum seruus fideiussionis nomine obligari non possit.
[JAVOLENUS in the thirteenth book of Letters.] But also, if the master of a slave has paid the money, he will be able to recover it not from the person for whom the slave became surety, but from the person to whom he paid it, since a slave cannot be obligated under the name of suretyship.
sequitur ergo, ut ab eo, pro quo fideiusserat, repeti non possit, cum ipse aere alieno obligatus sit nec solutione liberari eius pecuniae nomine potuerit, cuius obligatio ad seruum non pertinuit.
It follows, therefore, that it cannot be recovered from the person for whom the slave had become surety, since that person himself remains obligated for the debt and could not be released by a payment made on account of a debt which did not belong to the slave.

Notes

  1. §46.1.20.prfideiussit — The subject of this verb is not the preceding 'serui dominus' (master of the slave), but the genitive 'serui' (slave), in light of the context that a slave cannot legally become a surety.
  2. §46.1.20.pripse — Refers to 'eo' (the principal debtor), which is the antecedent of the relative clause. Since the slave's suretyship is void, the payment by the master does not discharge the principal debtor's liability, meaning he himself remains bound (obligatus sit) by his own debt.
  3. §46.1.20.prcuius obligatio ad seruum non pertinuit — The antecedent of the relative pronoun 'cuius' is 'eius pecuniae' (meaning the debt for which payment was made). It explains that the slave lacked the capacity to become a surety, and thus the obligation never attached to or concerned the slave.

Cite this passage

Justinian I, The Digest of Justinian §46.1.20.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:46.1.20.pr

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