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Justinian I · The Digest of Justinian §46.1.41.pr-46.1.41.1

Surety Liability for Curators and Cession to Co-Mandators

Passage 7589 of 9271 · Latin

Summary

This fragment discusses the limitation of sureties' liability for a curator when the former pupil was negligent, and a co-mandator's right to request the assignment of actions against others.

[IDEM libro tertio decimo responsorum. ] §46.1.41.prRespondit, si fideiussores in id accepti sunt, quod a curatore seruari non possit, et post impletam legitimam aetatem tam ab ipso curatore quam ab heredibus eius solidum seruari potuit et cessante eo, qui pupillus fuit, soluendo esse desierit: non temere utilem in fideiussores actionem competere.
[THE SAME, in the thirteenth book of Responses.] He answered that, if sureties were accepted for that which cannot be recovered from a curator, and after the age of majority has been reached, the whole amount could have been recovered both from the curator himself and from his heirs, but owing to the negligence of him who was the pupil, [the debtor] ceased to be solvent, an equitable action does not readily lie against the sureties.
§46.1.41.1Idem respondit, si in solidum condemnatus est unus ex mandatoribus, cum iudicati conueniri coeperit, posse eum desiderare, ut aduersus eos, qui idem mandauerunt, actiones sibi mandentur.
The same answered that, if one of several mandators has been condemned for the whole amount, when he begins to be sued on the judgment, he can request that the actions against those who gave the same mandate be assigned to him.

Notes

  1. §46.1.41.prsoluendo esse desierit — soluendo is the dative of the gerund (dative of purpose), and soluendo esse means "to be solvent" (literally, to be fit for paying). Together with desierit (subjunctive perfect or future perfect of desinere), it means "ceased to be solvent." The implied subject is contextually the curator or his heirs.
  2. §46.1.41.prnon temere — Meaning "not rashly" or "not readily." Since the sureties were accepted under a limited condition ("for that which cannot be recovered from the curator"), if the former pupil missed the opportunity to recover the debt due to his own negligence (cessante eo), the law is cautious in allowing an equitable action (utilis actio) against the sureties.
  3. §46.1.41.1actiones sibi mandentur — This refers to the request by the condemned co-mandator for the "cession (mandate) of actions" against the other co-mandators. This points to the "benefit of cession of actions" (beneficium cedendarum actionum) allowed to a co-debtor or co-mandator who pays the whole debt, enabling them to seek recourse against the others.

Cite this passage

Justinian I, The Digest of Justinian §46.1.41.pr-46.1.41.1. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:46.1.41.pr-46.1.41.1

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