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Justinian I · The Digest of Justinian §46.1.63.pr

Surety Liability Limited to Deficiency After Pledge Sale

Passage 7611 of 9271 · Latin

Summary

In a case where an agreement allowed the sale of pledges upon default with any deficiency to be paid, and a surety was accepted, the question arose whether the surety was liable for the whole sum or only the deficiency; it was answered that the surety is liable only for the deficiency.

[IDEM libro sexto responsorum. ] §46.1.63.prInter creditricem et debitorem pactum intercesserat, ut, si centum, quae mutua dederit, ubi primum petita fuissent, non soluerentur, ornamenta pignori data intra certum tempus liceret ei uendere et si quo minoris uenissent, quodque sortis uel usurarum nomine deberetur, id creditrici redderetur, et fideiussor acceptus est: quaesitum est, an fideiussor in uniuersam summam obligari potuerit.
An agreement had been entered into between a female creditor and a debtor, that, if the hundred which she had lent should not be paid as soon as they were demanded, she should be allowed to sell the ornaments given in pledge within a certain time, and if they should be sold for less, whatever should be owed on account of the principal or interest, this should be paid to the female creditor; and a surety was accepted. The question was asked, whether the surety could be obligated for the entire sum.
respondit secundum ea quae proponerentur teneri fideiussorem in id, quod minus ex pignoribus uenditis redactum esset.
He replied that, according to the facts proposed, the surety was bound for that which was lacking from the proceeds of the sold pledges.

Notes

  1. §46.1.63.prquo minoris — 'quo' is an ablative of measure of difference used with a comparative, and 'minoris' is a genitive of price. It indicates the case where the items are sold for less than the original debt amount.
  2. §46.1.63.pruenissent — The subjunctive pluperfect third-person plural of the verb 'ueneo' (to be sold). Although active in form, it has a passive meaning and takes 'ornamenta' as its subject.
  3. §46.1.63.prid, quod minus ... redactum esset — 'minus' functions adverbially, meaning 'that which was collected in a lesser amount,' i.e., the deficiency or remainder relative to the full debt amount.

Cite this passage

Justinian I, The Digest of Justinian §46.1.63.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:46.1.63.pr

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