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Justinian I · The Digest of Justinian §46.1.25.pr

Suretyship for Incapacitated Persons and Denial of Recourse

Passage 7573 of 9271 · Latin

Summary

Ulpian cites Marcellus's opinion that a surety who guarantees the obligation of an unauthorized pupil, a prodigal, or a madman should not be granted relief, as no action on mandate lies against such persons.

[ULPIANUS libro undecimo ad edictum. ] §46.1.25.prMarcellus scribit, si quis pro pupillo sine tutoris auctoritate obligato prodigoue uel furioso fideiusserit, magis esse, ut ei non subueniatur, quoniam his mandati actio non competit.
[ULPIANUS in the eleventh book on the Edict.] Marcellus writes that if anyone has become surety for a pupil who bound himself without the authority of his tutor, or for a prodigal, or for a madman, it is more correct that he should not be granted relief, since an action on mandate does not lie against these persons.

Notes

  1. §46.1.25.prmagis esse — An accusative with infinitive construction introduced by the main verb 'scribit'. It implies the omission of an adjective like 'aequum' or a verb like 'optinere', meaning 'it is more correct to hold that...' or 'the better view is that...'.
  2. §46.1.25.prut ei non subueniatur — Since the verb 'subuenio' (to relieve, help) governs the dative case, its passive voice is used impersonally ('subueniatur'), with the beneficiary of the relief expressed by the dative 'ei' (referring to 'si quis', the surety).
  3. §46.1.25.prquoniam his mandati actio non competit — The dative demonstrative pronoun 'his' refers to the principal debtors lacking full legal capacity (the pupil, the prodigal, and the madman). Since they lack the capacity to enter into a valid mandate, the surety cannot bring a (contrary) action on mandate against them for recovery.

Cite this passage

Justinian I, The Digest of Justinian §46.1.25.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:46.1.25.pr

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