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Justinian I · The Digest of Justinian §46.1.68.pr-46.1.68.2

Scope of Liability and Discharge for Public Sureties

Passage 7616 of 9271 · Latin

Summary

This text details imperial decrees concerning the scope of liability for guarantors of magistrates, the priority of principal and interest in tax-farming lease guarantees, and the release of guarantors when the principal debtor settles via compromise.

[IDEM libro tertio decretorum. ] §46.1.68.prFideiussores magistratuum in poenam uel multam, quam non spopondissent, non debere conueniri decreuit.
[THE SAME in the third book of Decisions.] He decreed that the guarantors of magistrates ought not to be sued for a penalty or fine which they had not promised.
§46.1.68.1Pro Aurelio Romulo conductore uectigalis centum annua Petronius Thallus et alii fideiusserant: bona Romuli fiscus ut obligata sibi occupauerat et conueniebat fideiussores tam in sortem quam in usuras: qui deprecabantur.
Petronius Thallus and others had become guarantors for Aurelius Romulus, a lessee of public revenue at an annual rent of one hundred. The imperial treasury had seized Romulus' property as being pledged to it, and was suing the guarantors for both the principal and interest; but they made a petition against this.
lecta subscriptione fideiussionis, quoniam in sola centum annua se obligauerant, non in omnem conductionem, decreuit fideiussores in usuras non teneri, sed quidquid ex bonis fuisset redactum, prius in usuras cedere, reliquum in sortem, et ita in id quod defuisset fideiussores conueniendos exemplo pignorum a creditore distractorum.
Having read the subscription of the guaranty, since they had bound themselves only for the annual one hundred and not for the entire lease, he decreed that the guarantors were not liable for the interest, but that whatever should be realized from the property should first go toward the interest, and the remainder toward the principal, and that the guarantors should thus be sued for the deficiency, following the example of pledges sold by a creditor.
§46.1.68.2Non possunt conueniri fideiussores liberato reo transactione.
Guarantors cannot be sued when the principal debtor has been released by a compromise.

Notes

  1. §46.1.68.prdecreuit — Although the subject is not explicitly stated, both the title of the work (decretorum, "Decisions") and the context imply that the Roman Emperor, holding supreme judicial authority, is the subject. A decretum refers to an imperial judicial decision.
  2. §46.1.68.1qui deprecabantur — The relative pronoun qui refers to the guarantors (fideiussores) mentioned in the previous sentence, functioning as a connecting relative at the beginning of the clause. The verb deprecari here carries the legal nuance of "to petition against" or "to plead for relief from" an unjust demand, rather than merely "to pray."
  3. §46.1.68.1conueniendos — This is a gerundive (conueniendos [esse]) within the indirect discourse introduced by decreuit. It agrees with the subject accusative fideiussores, expressing the obligation or legal consequence that, following the analogy of sold pledges (pignorum distractorum), "the guarantors ought to be sued" only for the remaining deficiency.
  4. §46.1.68.2liberato reo transactione — An ablative absolute construction consisting of the noun reus (principal debtor) and the perfect participle liberato. The noun transactione (by a compromise/settlement) is an ablative of means or cause. It states the condition under which the principal debtor is released, which in turn bars action against the guarantors.

Cite this passage

Justinian I, The Digest of Justinian §46.1.68.pr-46.1.68.2. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:46.1.68.pr-46.1.68.2

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