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Justinian I · The Digest of Justinian §46.2.12.pr

Delegation of a Debtor with a Defense of Fraud

Passage 7633 of 9271 · Latin

Summary

Discusses the legal consequences of delegating a debtor who has a defense of fraud, distinguishing between whether the debtor knew of the defense or was ignorant of it. If he knew, it is deemed a waiver; if ignorant, he cannot oppose the creditor but can hold the delegator liable through a condictio or an action on mandate.

[PAULUS libro trigensimo primo ad edictum. ] §46.2.12.prSi quis delegauerit debitorem, qui doli mali exceptione tueri se posse sciebat, similis uidebitur ei qui donat, quoniam remittere exceptionem uidetur.
[PAULUS, in the thirty-first book on the Edict.] If anyone delegates a debtor who knew that he could defend himself by the plea of fraud, that debtor will seem similar to one who makes a gift, since he is deemed to waive the plea.
sed si per ignorantiam promiserit creditori, nulla quidem exceptione aduersus creditorem uti poterit, quia ille suum recepit: sed is qui delegauit tenetur condictione uel incerti, si non pecunia soluta esset, uel certi, si soluta esset, et ideo, cum ipse praestiterit pecuniam, aget mandati iudicio.
But if through ignorance he has made a promise to the creditor, he will indeed be unable to use any plea against the creditor, because the latter has received what was due to him; but the person who delegated him is liable either by an action for an uncertain thing, if the money has not been paid, or for a certain thing, if it has been paid, and therefore, when he himself has paid the money, he will bring an action on mandate.

Notes

  1. §46.2.12.prqui doli mali exceptione — The antecedent of the relative pronoun qui is debitorem (the delegated debtor). The subject of the subsequent similis uidebitur is also this debtor, not the delegator (si quis).
  2. §46.2.12.prtenetur condictione — The subject of the passive verb tenetur is is qui delegauit (the delegator). He is held liable to the delegated debtor, who promised in ignorance, as the defendant in an action for return of enrichment (condictio).
  3. §46.2.12.prcum ipse praestiterit — The pronoun ipse refers to the delegated debtor. Once he has actually paid the money to the creditor on behalf of the delegator, he can bring a counter-action on mandate against the delegator.

Cite this passage

Justinian I, The Digest of Justinian §46.2.12.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:46.2.12.pr

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