Humanitext Reader

Justinian I · The Digest of Justinian §46.1.50.pr

Merger and Transfer of Debt when Creditor and Surety Inherit

Passage 7598 of 9271 · Latin

Summary

Discusses the extinguishment of an obligation through merger or the power of payment when a creditor becomes a co-heir of the debtor alongside the surety, and how the co-heir's obligation continues as an inherited rather than a surety's obligation.

[IDEM libro trigensimo septimo quaestionum. ] §46.1.50.prDebitori creditor pro parte heres extitit accepto coherede fideiussore: quod ad ipsius quidem portionem attinet, obligatio ratione confusionis intercidit aut (quod est uerius) solutionis potestate: sed pro parte coheredis obligatio salua est non fideiussoria, sed hereditaria, quoniam maior tollit minorem.
[The same, in the thirty-seventh book of Questions.] A creditor became heir to his debtor for a share, with the surety being accepted as a co-heir. As far as his own share is concerned, the obligation is extinguished by reason of merger (confusio) or, what is more true, by the power of payment. But for the share of the co-heir, the obligation remains intact, not as a surety's obligation, but as an inherited one, since the greater extinguishes the lesser.

Notes

  1. 46.1.50.praccepto coherede fideiussore — An ablative absolute construction where "coherede" and "fideiussore" are in apposition. It describes the situation where the original surety became a co-heir alongside the creditor to the debtor's estate.
  2. 46.1.50.prquoniam maior tollit minorem — A legal maxim meaning 'since the greater extinguishes the lesser'. Here, "maior" refers to the direct liability as an heir (obligatio hereditaria), which absorbs and supersedes "minorem," the accessory liability as a surety (obligatio fideiussoria).

Cite this passage

Justinian I, The Digest of Justinian §46.1.50.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:46.1.50.pr

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