Humanitext Reader

Justinian I · The Digest of Justinian §46.1.60.pr

Surety Liability Upon Debtor Release and Novation

Passage 7608 of 9271 · Latin

Summary

Scaevola states that the surety remains bound if the principal debtor is released but a natural debt remains, whereas the surety is released either by law or by an exception if the obligation is transferred via novation.

[SCAEUOLA libro primo responsorum. ] §46.1.60.prUbicumque reus ita liberatur a creditore, ut natura debitum maneat, teneri fideiussorem respondit: cum uero genere nouationis transeat obligatio, fideiussorem aut iure aut exceptione liberandum.
[SCAEVOLA, in the first book of Opinions.] He replied that wherever the principal debtor is released by the creditor in such a manner that the debt remains as a natural obligation, the surety is bound; but when the obligation is transferred by a kind of novation, the surety is to be released either by law or by an exception.

Notes

  1. §46.1.60.prrespondit — The main verb of the response, which governs both the accusative and infinitive construction `fideiussorem teneri` in the first clause and `fideiussorem... liberandum [esse]` (with `esse` omitted) in the second clause.
  2. §46.1.60.prnatura — An ablative of limitation or manner ('in nature' or 'by natural law'), referring to the situation where the debt survives as a 'natural obligation' (obligatio naturalis), which cannot be enforced by action but remains valid if performed, even though the civil law liability is released.
  3. §46.1.60.priure aut exceptione — Meaning 'by law' (ipso iure) or 'by an exception' (ope exceptionis), contrasting the two main pathways of discharge or release in Roman law (extinguishment by operation of civil law versus practical release by the praetorian grant of a defense).

Cite this passage

Justinian I, The Digest of Justinian §46.1.60.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:46.1.60.pr

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