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Justinian I · The Digest of Justinian §46.2.15.pr

Novation before Due Date and Penalty Stipulations

Passage 7636 of 9271 · Latin

Summary

Explains that even if a creditor had stipulated for a penalty for non-payment by the due date, if a novation is made before that date, the penalty stipulation does not become enforceable.

[IULIANUS libro tertio decimo digestorum. ] §46.2.15.prSi creditor poenam stipulatus fuerat, si ad diem pecunia soluta non esset, nouatione facta non committitur stipulatio.
[JULIANUS, Digest, Book 13.] If a creditor had stipulated for a penalty in case the money should not be paid by the due date, once a novation has been made, the stipulation for the penalty is not committed.

Notes

  1. §46.2.15.prsi ... si — Two `si` clauses are nested. The first `si` (si creditor poenam...) introduces the overall premise "if a creditor had stipulated for a penalty," while the second `si` clause (si ad diem...) defines the condition under which the penalty (`poenam`) is to be paid.
  2. §46.2.15.prnon committitur stipulatio — Here `committere` (passive `committi`) is a legal technical term used of conditional stipulations (especially penalty clauses) meaning that the condition is fulfilled and "the obligation arises" or "the stipulation is forfeited/enforceable." Since the original debt itself is extinguished by novation (`nouatione facta`), the condition is not met even if no payment is made by the due date, and thus no liability for the penalty arises.

Cite this passage

Justinian I, The Digest of Justinian §46.2.15.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:46.2.15.pr

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