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Justinian I · The Digest of Justinian §46.1.24.pr

Liability of Co-Heirs When the Debtor Is an Heir

Passage 7572 of 9271 · Latin

Summary

In a case where Titius sent a letter guaranteeing his brother Seius's debt and later died leaving Seius as a partial heir, the text addresses whether the creditor can sue the other co-heirs for the full amount, deciding that liability is limited to their respective hereditary shares.

[MARCELLUS libro singulari responsorum. ] §46.1.24.prLucius Titius cum pro Seio fratre suo apud Septicium interuenire uellet, epistulam ita emisit: 'si petierit a te frater meus, peto des ei nummos fide et periculo meo': post quam epistulam Septicius Seio pecuniam numerauit.
[MARCELLUS in the single book of Responses.] Lucius Titius, wishing to intervene on behalf of his brother Seius with Septicius, sent a letter as follows: 'If my brother requests of you, I ask that you give him money at my credit and risk.' After this letter, Septicius counted out the money to Seius.
deinde Titius inter reliquos et Seium fratrem pro tertia parte reliquit heredem.
Then Titius died, leaving other heirs and his brother Seius as heir for a one-third share.
quaero, an, quia aduersus Seium debitorem Septicii confusa sit actio pro tertia parte, qua Titio fratri suo heres exstitit, cum coheredibus eius agere in solidum possit.
I ask whether, because the action of Septicius against his debtor Seius has been merged for the one-third share by which he stood as heir to his brother Titius, he can bring an action in solidum against Seius's co-heirs.
Marcellus respondit cum coherede Seii non pro maiore quam hereditaria parte mandati agi posse.
Marcellus replied that an action on mandate cannot be brought against a co-heir of Seius for more than their hereditary share.

Notes

  1. §46.1.24.prpeto des — A construction with the omission of the conjunction ut (for peto ut des), where the subjunctive des forms the object clause of peto.
  2. §46.1.24.prpro tertia parte reliquit heredem — Meaning 'left [Seius] as heir for a one-third share among the other heirs'. This indicates that the principal debtor Seius inherited 1/3, and the other co-heirs inherited the remaining 2/3 of the estate.
  3. §46.1.24.prcum coheredibus eius — The pronoun eius refers to the principal debtor Seius. Thus, 'his co-heirs' means the other heirs (reliqui) who inherited from the deceased Titius along with Seius.
  4. §46.1.24.prnon pro maiore quam hereditaria parte mandati agi posse — The phrase non pro maiore quam hereditaria parte means 'not for a share greater than the hereditary share' and modifies the impersonal passive infinitive agi, with actione mandati (by the action of mandate) understood. This concludes that the liability of each co-heir is limited to their own share, and a joint and several claim (in solidum) is not permitted.

Cite this passage

Justinian I, The Digest of Justinian §46.1.24.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:46.1.24.pr

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