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Justinian I · The Digest of Justinian §46.1.33.pr

Surety Liability When a Contested Slave Inherits

Passage 7581 of 9271 · Latin

Summary

This section discusses how a surety's liability changes when a slave, who is the object of a lawsuit, is freed and appointed as an heir by the defendant, depending on the ownership of the slave and the plaintiff's orders.

[IDEM libro septuagensimo septimo ad edictum. ] §46.1.33.prSi eum hominem, quem a Titio petieram, pro quo satis de lite acceperam, Titius liberum heredemque reliquerit: si quidem re uera ipsius fuit, dicendum est iudicium in eum transferri et, si non patiatur id fieri, committi stipulationem: si autem meus petitoris fuit neque iussu meo hereditatem adierit, fideiussores tenebuntur ob rem non defensam: si autem adierit me iubente, stipulatio euanescit.
[THE SAME in the seventy-seventh book on the Edict.] If Titius has left as free and as his heir that slave whom I had claimed from Titius, and for whom I had received security concerning the litigation: if indeed he really belonged to Titius himself, it must be said that the action is transferred to him, and, if he does not allow this to happen, the stipulation is forfeited; but if he belonged to me, the plaintiff, and has not entered upon the inheritance under my order, the sureties will be held liable on account of an undefended case; if, however, he has entered upon it by my order, the stipulation vanishes.
plane si meus fuerit et idcirco differam aditionem, ut, cum uicero, tunc eum iubeam adire et interim ob rem non defensam agere uelim, non committitur stipulatio, quia uir bonus non arbitraretur.
Clearly, if he belonged to me and I should postpone the entry for this reason, namely, that when I have won the case, I may then order him to enter upon it, and in the meantime I should wish to sue on account of an undefended case, the stipulation is not forfeited, because a man of integrity would not so decide.

Notes

  1. §46.1.33.prsatis de lite acceperam — satis accipere means 'to receive sufficient security,' referring here to the security (satisdatio pro lite) provided by sureties to guarantee the execution of the judgment.
  2. §46.1.33.prcommitti stipulationem — committi (passive present infinitive) means that the condition is fulfilled and 'the stipulation is forfeited/activated,' giving rise to the right to demand the penalty or execution.
  3. §46.1.33.prneque iussu meo hereditatem adierit — In Roman law, a slave under power (here, belonging to the plaintiff, meus petitoris) could only enter upon an inheritance (adire) by the order (iussus) of his master. neque negates adierit, meaning 'and has not entered upon it without my order.'
  4. §46.1.33.pruir bonus non arbitraretur — This refers to the judgment based on the standard of a 'man of integrity' or 'reasonable man' (arbitrium uiri boni). The subjunctive imperfect arbitraretur has a counterfactual or potential nuance: 'a man of integrity would not so decide (if faced with such bad-faith delay).'

Cite this passage

Justinian I, The Digest of Justinian §46.1.33.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:46.1.33.pr

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