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Justinian I · The Digest of Justinian §46.1.48.pr-46.1.48.1

Liability of a Co-Surety upon Invalidity or Relief

Passage 7596 of 9271 · Latin

Summary

Discusses the full liability of a co-surety when a woman's guarantee is void under the Senate's decree, and the liability of a remaining co-surety when a minor co-surety is restored to their original condition, considering the presence of fraud by the creditor.

[IDEM libro decimo quaestionum. ] §46.1.48.prSi Titius et Seia pro Maeuio fideiusserint, subducta muliere dabimus in solidum aduersus Titium actionem, cum scire potuerit aut ignorare non debuerit mulierem frustra intercedere.
If Titius and Seia have become sureties for Maevius, when the woman is withdrawn, we shall grant an action for the whole against Titius, since he could have known or ought not to have been ignorant that the woman was interceding in vain.
H §46.1.48.1uic similis et illa quaestio uideri potest, ob aetatem si restituatur in integrum unus fideiussor, an alter onus obligationis integrum excipere debeat.
T o this, similar also may seem that question, whether, if one surety is restored to his original condition on account of his age, the other ought to bear the whole burden of the obligation.
sed ita demum alteri totum irrogandum est, si postea minor intercessit, propter incertum aetatis ac restitutionis.
But the whole is to be imposed on the other only if the minor interceded afterwards, because of the uncertainty of age and restoration.
quod si dolo creditoris inductus sit minor, ut fideiubeat, non magis creditori succurrendum erit aduersus confideiussorem, quam si facta nouatione circumuento minore desideraret in ueterem debitorem utilem actionem sibi dari.
But if the minor was induced by the fraud of the creditor to become a surety, the creditor should no more be relieved against the co-surety than if, after a novation had been made and the minor defrauded, he should desire an equitable action to be granted to him against the former debtor.

Notes

  1. §46.1.48.prsubducta muliere — Ablative absolute. It refers to the situation where the woman (Seia) is excluded from the joint guarantee because her undertaking of another's debt (intercessio) is void under the Senatus Consultum Velleianum.
  2. §46.1.48.prcum scire potuerit aut ignorare non debuerit — The conjunction 'cum' expresses cause ('since'). The subject is the co-surety Titius. It points to his negligence in that he could have known, or ought not to have been ignorant of, the fact that the woman's intercession was void (mulierem frustra intercedere).
  3. §46.1.48.1ita demum... si — A correlative expression meaning 'only if...' or 'on the condition that...'. The whole burden is imposed on the other co-surety only if the minor became a surety afterwards (postea). If the minor was already a surety beforehand, the subsequent surety could have known the risk and is naturally liable for the whole anyway.
  4. §46.1.48.1non magis... quam si — A comparative negative construction meaning 'no more... than if...' (i.e., 'just as... not'). It explains that a creditor who used fraud (dolus) to induce a minor to become a surety is not entitled to relief (such as demanding the whole from the co-surety), just as a creditor who defrauded a minor in a novation is not allowed to seek an equitable action (utilis actio) against the original debtor.

Cite this passage

Justinian I, The Digest of Justinian §46.1.48.pr-46.1.48.1. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:46.1.48.pr-46.1.48.1

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