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Justinian I · The Digest of Justinian §46.1.45.pr

Surety Action against Heir before Eviction Judgment Execution

Passage 7593 of 9271 · Latin

Summary

A surety, condemned to pay a certain amount after one of the two sold tracts of land was evicted, asks whether he can sue the seller's heir before the execution of the judgment; the response is that he can, but the judge's office must intervene to protect or release the surety.

[SCAEUOLA libro sexto digestorum. ] §46.1.45.prFideiussor pro uenditore fundorum duorum altero euicto conuentus ab emptore condemnatus est certam quantitatem: quaesitum est, an cum herede uenditoris ante diem, quo iudicatum facere compelleretur, agere possit.
[SCAEUOLA, in the sixth book of Digests.] A surety for the seller of two tracts of land, when one of them was evicted, was sued by the buyer and condemned to a certain amount. The question was asked whether he could bring an action against the heir of the seller before the day on which he would be compelled to satisfy the judgment.
respondit agere quidem posse, sed ex iusta causa ad officium iudicis pertinere quo fideiussor aut defendatur aut liberaretur.
He answered: He can indeed bring an action, but based on a just cause it belongs to the office of the judge whereby the surety may either be defended or released.

Notes

  1. §46.1.45.prcondemnatus est certam quantitatem — The verb condemnare (to condemn, sentence) usually takes the penalty or amount in the genitive or ablative in classical Latin. However, in juristic Latin, as in this passage, it frequently takes the direct object in the accusative (certam quantitatem) to indicate the specific amount of the judgment. This is understood as an accusative of specification (Greek accusative) or an internal accusative.
  2. §46.1.45.prquo fideiussor aut defendatur aut liberaretur — The relative adverb/conjunction quo (derived from the ablative of the relative pronoun) here introduces a clause of purpose (equivalent to ut). Regarding the subjunctive tenses, the present (defendatur) and the imperfect (liberaretur) are coordinate, departing from the strict sequence of tenses (consecutio temporum). This may represent a semantic distinction where defense is viewed as an ongoing current action and release as a final completed result, or it may reflect a textual corruption or mixture of readings.

Cite this passage

Justinian I, The Digest of Justinian §46.1.45.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:46.1.45.pr

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