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Justinian I · The Digest of Justinian §46.1.53.pr

Claims Against the Sureties of a Capital Defendant

Passage 7601 of 9271 · Latin

Summary

A creditor who has criminally prosecuted their debtor on a capital charge can lawfully sue the debtor's sureties under the contract without facing any procedural defense.

[IDEM libro quinto decimo responsorum. ] §46.1.53.prCapitis postulati fideiussores ex contractu citra ullam praescriptionem a creditore, qui reum postulauit, recte conueniuntur.
[The same, in the fifteenth book of Opinions.] The sureties of a person prosecuted on a capital charge are correctly sued on their contract, without any defense, by the creditor who prosecuted the defendant.

Notes

  1. §46.1.53.prcapitis postulati — capitis is a genitive of the charge (capital crime), modifying postulati which is used substantively ('the person prosecuted'). The entire phrase is a genitive qualifying fideiussores ('sureties of a person prosecuted on a capital charge').
  2. §46.1.53.prqui reum postulauit — The relative clause qui ... refers to creditor. reum refers to the principal debtor who was criminally prosecuted, and postulauit means to bring a criminal charge. It implies that even if the creditor himself criminally prosecuted the debtor, his contractual claim against the sureties remains valid.
  3. §46.1.53.prcitra ullam praescriptionem — citra is a preposition governing the accusative meaning 'without'. praescriptio refers here to a procedural 'defense' or 'exception'. It means that the surety cannot raise any defense arising from the fact that the principal debtor is under criminal prosecution or that the creditor himself initiated it.

Cite this passage

Justinian I, The Digest of Justinian §46.1.53.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:46.1.53.pr

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