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Justinian I · The Digest of Justinian §46.1.72.pr

Action Against Principal Debtor after Conditional Release

Passage 7620 of 9271 · Latin

Summary

If a guarantor bound conditionally and only for his lifetime is released and dies while the condition is pending, the subsequent fulfillment of the condition cannot affect the deceased, allowing the creditor to immediately sue the principal debtor.

[GAIUS libro tertio de uerborum obligationibus. ] §46.1.72.prSi fideiussori sub condicione obligato 'si nauis ex Asia uenerit', quem sub hoc modo accepi, ut usque ad tempus uitae suae dumtaxat obligaretur, pendente condicione acceptum latum fuerit et is fideiussor adhuc pendente condicione mortuus fuerit: confestim a reo petere possum, quia existens condicio neque obligationem in personam iam mortui efficere neque acceptilationem confirmare possit.
[GAIUS in the third book on verbal obligations.] If, while the condition is pending, a formal release has been granted to a guarantor bound under the condition 'if the ship comes from Asia'—whom I accepted under this limitation, that he should be bound only up to the time of his life—and this guarantor has died while the condition is still pending: I can immediately demand payment from the principal debtor, because the fulfillment of the condition can neither produce an obligation in the person of one already dead, nor confirm the formal release.

Notes

  1. §46.1.72.pracceptum latum fuerit — The passive perfect form of the phrase acceptum ferre (to acknowledge as received, to release), used here as an impersonal passive (or with acceptum as subject) governing the dative fideiussori. It means 'if a formal release has been granted (to the guarantor)'.
  2. §46.1.72.prsub hoc modo accepi, ut... obligaretur — Located within the relative clause quem sub hoc modo accepi, where the ut-clause (with imperfect subjunctive obligaretur) acts as a noun clause (or clause of result) explaining the content of modo. It shows the structure 'whom I accepted under this limitation, namely, that he should be bound only during his lifetime'.
  3. §46.1.72.prexistens condicio — The present participle existens modifies condicio attributively, meaning not a 'currently existing condition' but a 'subsequently occurring (fulfilled) condition'. It acts as the subject of the following verb possit.

Cite this passage

Justinian I, The Digest of Justinian §46.1.72.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:46.1.72.pr

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