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Justinian I · The Digest of Justinian §46.1.56.pr-46.1.56.3

Suretyship in Sworn Services, Family Contracts, and Loans

Passage 7604 of 9271 · Latin

Summary

This section explains the invalidity of a surety for services sworn by a non-freedman, the criteria for validity in stipulations between family members or slaves and their masters, and the availability of sureties in cases of consumption of another's money and delictual actions.

[IDEM libro quinto decimo quaestionum. ] §46.1.56.prSi quis pro eo, qui libertus non esset et operas praestaturum se iurasset, fideiussor erit, non tenebitur.
[The same, in the fifteenth book of Questions.] If anyone becomes a surety for a person who is not a freedman and who has sworn that he will perform services, he will not be bound.
§46.1.56.1Item si filius a patre uel seruus a domino stipuletur, nec fideiussor acceptus tenetur, quia non potest pro eodem et eidem esse obligatus.
Likewise, if a son should stipulate from his father or a slave from his master, a surety who has been accepted is not bound either, because one cannot be bound for the same person and to the same person.
ex diuerso ergo patre a filio uel domino a seruo stipulato fideiussor acceptus tenetur.
Therefore, on the contrary, if a father should stipulate from his son or a master from his slave, a surety who has been accepted is bound.
§46.1.56.2Si nummos alienos quasi tuos mutuos dederis sine stipulatione, nec fideiussorem teneri Pomponius ait.
If you should give another person's coins as if they were yours as a loan without a stipulation, Pomponius says that the surety is not bound either.
quid ergo, si consumptis nummis nascatur condictio? puto fideiussorem obligatum fore: in omnem enim causam acceptus uidetur, quae ex ea numeratione nasci potest.
What then if, the coins having been consumed, a personal action for recovery (condictio) arises? I think that the surety will be bound; for he is deemed to have been accepted for every cause that can arise from that delivery of money.
§46.1.56.3Pro furti actione fideiussor accipi potest: item pro eo, qui in legem Aquiliam commisit.
A surety can be accepted for an action for theft; likewise for one who has committed an offense against the Aquilian law.
diuersa causa est popularium actionum.
The case of popular actions is different.

Notes

  1. §46.1.56.1pro eodem et eidem esse obligatus — 'To be bound for the same person and to the same person.' If a son stipulates from his father (or a slave from his master), the claim acquired by the son belongs to the father (or master) under the Roman family system. Therefore, the surety would be bound on behalf of the father (or master) and to the same father (or master), making the creditor and debtor identical, which invalidates the surety.
  2. §46.1.56.1patre a filio uel domino a seruo stipulato — An ablative absolute construction using the perfect participle 'stipulatus' of the deponent verb 'stipulor' in an active sense ('having stipulated'). It is translated as 'if a father should stipulate from his son or a master from his slave.' In this case, the creditor is the father (or master) and the debtor is the son (or slave), so the aforementioned contradiction of identity does not arise, and the surety is validly established for a natural obligation.
  3. §46.1.56.2consumptis nummis nascatur condictio — Ablative absolute 'the coins having been consumed.' If another's coins are delivered as a loan, the loan is initially invalid because ownership does not transfer, and the surety is not bound. However, once the borrower consumes the coins (consumptis nummis), the original ownership is extinguished, and a personal action for recovery (condictio) based on unjust enrichment arises in favor of the lender. The issue is whether the surety's liability extends to this action.

Cite this passage

Justinian I, The Digest of Justinian §46.1.56.pr-46.1.56.3. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:46.1.56.pr-46.1.56.3

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