Humanitext Reader

Justinian I · The Digest of Justinian §46.1.39.pr

Denial of Recourse between Co-Sureties without Cession

Passage 7587 of 9271 · Latin

Summary

Explains that regarding recourse between co-sureties, unless actions are ceded by the creditor, the surety who paid the whole amount cannot sue the co-surety, who consequently remains free from any liability.

[MODESTINUS libro secundo regularum. ] §46.1.39.prUt fideiussor aduersus confideiussorem suum agat, danda actio non est.
[MODESTINUS, in the second book of Rules.] An action is not to be granted in order that a surety may sue his co-surety.
ideoque si ex duobus fideiussoribus eiusdem quantitatis cum alter electus a creditore totum exsoluit nec ei cessae sint actiones, alter nec a creditore nec a confideiussore conuenietur.
And therefore, if of two sureties for the same amount, one, having been chosen by the creditor, has paid the whole, and the actions have not been ceded to him, the other will be sued neither by the creditor nor by the co-surety.

Notes

  1. §46.1.39.prUt fideiussor aduersus confideiussorem suum agat, danda actio non est — The "ut" clause expresses purpose ("in order that a surety may sue his co-surety"). "danda est" is a gerundive construction expressing necessity, here negated ("an action is not to be granted"). This reflects the classical Roman law principle that no automatic right of recourse existed between co-sureties.
  2. §46.1.39.prnec ei cessae sint actiones — Third-person plural perfect subjunctive passive of the verb cedere (to cede). Within the "si" conditional clause, it represents the non-occurrence of the expected prerequisite (that the actions were not ceded).

Cite this passage

Justinian I, The Digest of Justinian §46.1.39.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:46.1.39.pr

Please note the AI-draft status of the translation and the date accessed.

Translation, notes and summary are AI-generated drafts, revised through reader feedback.