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Justinian I · The Digest of Justinian §46.1.36.pr

Transfer of Creditor's Actions to a Paying Surety

Passage 7584 of 9271 · Latin

Summary

Explains the legal principle that when a creditor who has both a principal debtor and sureties transfers his actions after receiving money from one surety, the actions do not perish but are preserved, comparing this transaction to a sale of the debt.

[IDEM libro quarto decimo ad Plautium. ] §46.1.36.prCum is qui et reum et fideiussores habens ab uno ex fideiussoribus accepta pecunia praestat actiones, poterit quidem dici nullas iam esse, cum suum perceperit et perceptione omnes liberati sunt.
[THE SAME, in the fourteenth book on Plautius.] When a creditor who has both a principal debtor and sureties, having received the money from one of the sureties, transfers his actions, it could indeed be said that the actions no longer exist, since he has received what was due to him, and by this receipt everyone has been released.
sed non ita est: non enim in solutum accipit, sed quodammodo nomen debitoris uendidit, et ideo habet actiones, quia tenetur ad id ipsum, ut praestet actiones.
But this is not so; for he does not receive it by way of payment, but has in a certain sense sold the debtor's claim, and therefore he holds the actions, because he is bound for this very purpose, namely, to transfer the actions.

Notes

  1. §46.1.36.pris qui et reum et fideiussores habens — Grammatically, reading habet (indicative third-person singular) instead of habens (participle) is standard in modern editions, but if we retain habens as in the manuscripts, it functions as an attributive participle to the subject is (or as an anacoluthon within the relative clause), meaning 'he who has both a principal debtor and sureties'.
  2. §46.1.36.prin solutum — A legal expression referring to payment in satisfaction/discharge of a debt (solutio). The creditor's receipt of money from a surety is treated not 'as payment' which would extinguish the debt entirely, but as equivalent to a 'sale' of the claim in exchange for the transfer of actions (beneficium cedendarum actionum), meaning the actions are preserved.
  3. §46.1.36.prtenetur ad id ipsum, ut praestet actiones — The ut clause is in apposition to id ipsum, specifying the content of the obligation. Because the creditor is bound beforehand to transfer the actions (and thus the surety pays with the expectation of this transfer), the actions do not perish automatically upon payment but survive to be transferred.

Cite this passage

Justinian I, The Digest of Justinian §46.1.36.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:46.1.36.pr

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