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Justinian I · The Digest of Justinian §46.1.38.pr-46.1.38.1

Preserving Debtor Choice and Extinction of Surety via Merger

Passage 7586 of 9271 · Latin

Summary

Marcellus discusses that a guarantee is invalid if it allows the surety to override the principal debtor's right of choice, and that the surety's obligation is extinguished by merger when the creditor becomes the heir to the principal debtor.

[MARCELLUS libro uicensimo digestorum. ] §46.1.38.prSi Stichum aut Pamphilum stipulatus essem, utrum promissor uoluisset, non possum fideiussorem ita accipere Stichum aut Pamphilum, utrum fideiussor uellet, quia futurum esset in eius potestate alium uelle, quam reus uoluisset.
[MARCELLUS, in the twentieth book of the Digests.] If I had stipulated for Stichus or Pamphilus, whichever the promisor wished, I cannot accept a surety for Stichus or Pamphilus in such a way as whichever the surety wished, because it would be within his power to choose a different one from what the principal debtor had wished.
§46.1.38.1A Titio, qui mihi ex testamento sub condicione decem debuit, fideiussorem accepi et ei heres extiti: deinde condicio legati exstitit: quaero, an fideiussor mihi teneatur.
From Titius, who owed me ten under a condition by a will, I accepted a surety and became his heir; then the condition of the legacy was fulfilled: I ask whether the surety is bound to me.
respondit, si ei, a quo tibi erat sub condicione legatum, cum ab eo fideiussorem accepisses, heres exstiteris, non poteris habere fideiussorem obligatum, quia nec reus est, pro quo debeat, sed nec res ulla, quae possit deberi.
He replied: if you have become the heir to the person by whom a legacy was owed to you under a condition, after you had accepted a surety from him, you cannot have the surety bound, because there is neither a principal debtor for whom he should owe, nor any object which could be owed.

Notes

  1. §46.1.38.prutrum promissor uoluisset — An indirect question clause meaning "whichever the promisor wished." While the choice of performance belongs to the principal debtor, accepting a surety under the condition "whichever the surety wished" (utrum fideiussor uellet) is impermissible because it could create a discrepancy between the selections, violating the accessory nature of suretyship (the principle that a surety's obligation cannot be more onerous than the principal's).
  2. §46.1.38.1ei heres extiti — Refers to the merger of rights (confusio) when the creditor ("I") becomes the heir to the principal debtor ("him", Titius). Because the status of creditor and principal debtor are united in the same person, the principal debt is extinguished, and consequently, the surety's obligation is also extinguished due to its accessory character.
  3. §46.1.38.1quia nec reus est, pro quo debeat, sed nec res ulla, quae possit deberi — Explains the release of the surety due to merger from two aspects: personal and objective. reus refers to the principal debtor; since the creditor became the heir, there is no longer an independent principal debtor "for whom" (pro quo) the surety should owe. Furthermore, the object of the debt (res) effectively ceases to exist as an outstanding obligation due to the merger of the claim and debt.

Cite this passage

Justinian I, The Digest of Justinian §46.1.38.pr-46.1.38.1. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:46.1.38.pr-46.1.38.1

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