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Justinian I · The Digest of Justinian §46.2.14.pr-46.2.14.1

Mutual Novation with Conditions and Their Fulfillment

Passage 7635 of 9271 · Latin

Summary

The author discusses how novation involving a change between conditional and unconditional obligations only takes effect upon the fulfillment of the condition, analyzing the effects of the loss of the subject matter or change in status while the condition is pending.

[IDEM libro septimo disputationum. ] §46.2.14.prQuotiens quod pure debetur, nouandi causa sub condicione promittitur, non statim fit nouatio, sed tunc demum, cum condicio extiterit.
[THE SAME, Disputations, Book 7.] Whenever what is owed unconditionally is promised under a condition for the purpose of novating, novation does not take place immediately, but only then when the condition has been fulfilled.
et ideo si forte Stichus fuerit in obligatione et pendente condicione decesserit, nec nouatio continget, quia non subest res eo tempore, quo condicio impletur.
And therefore, if for instance Stichus was the subject of the obligation and died while the condition was pending, novation will not occur, because the thing does not exist at that time when the condition is fulfilled.
unde Marcellus et si post moram Stichus in condicionalem obligationem deductus sit, purgari moram nec in sequentem deduci obligationem putat.
Hence Marcellus thinks that even if Stichus, after default, has been brought into a conditional obligation, the default is purged and he is not brought into the subsequent obligation.
§46.2.14.1Sed si quod sub condicione debetur, pure quis nouandi causa stipuletur, nec nunc quidem statim nouat, licet pura stipulatio aliquid egisse uideatur, sed tunc nouabit, cum exstiterit condicio: etenim existens condicio primam stipulationem committit commissamque in secundam transfert.
But if someone should stipulate unconditionally, for the purpose of novating, for what is owed under a condition, even in this case it does not immediately novate, although the unconditional stipulation seems to have had some effect, but it will novate then, when the condition has been fulfilled: for indeed, the fulfilled condition makes the first stipulation enforceable, and transfers the stipulation thus made enforceable into the second.
et ideo si forte persona promissoris pendente condicione fuerit deportata, Marcellus scribit ne quidem existente condicione ullam contingere nouationem, quoniam nunc, cum extitit condicio, non est persona quae obligetur.
And therefore, if for instance the person of the promisor should be deported while the condition is pending, Marcellus writes that not even when the condition is fulfilled does any novation occur, since now, when the condition has been fulfilled, there is no person who can be bound.

Notes

  1. §46.2.14.prpurgari moram nec in sequentem deduci obligationem putat — Marcellus is the subject, putat is the main verb, and purgari moram and [Stichum] nec in sequentem deduci obligationem are accusative with infinitive clauses. Since Stichus was the subject of the previous clause, he is the implied subject of deduci. It means that the default is purged and he (Stichus) is not brought into the subsequent (new) obligation.
  2. §46.2.14.1commissamque in secundam transfert — commissam is a perfect passive participle modifying the preceding primam stipulationem, serving as the direct object of transfert. The verb committere in legal contexts means 'to become enforceable or effective upon the fulfillment of a condition.' It indicates that the first stipulation, having become enforceable, is transferred into the second.
  3. §46.2.14.1quae obligetur — A relative clause introduced by the relative pronoun quae, using the present subjunctive passive obligetur (subjunctive of characteristic). It expresses the qualification or potentiality of being 'a person who can be bound,' rather than simply a factual 'person who is bound.'

Cite this passage

Justinian I, The Digest of Justinian §46.2.14.pr-46.2.14.1. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:46.2.14.pr-46.2.14.1

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