Humanitext Reader

Justinian I · The Digest of Justinian §46.2.24.pr

Conditional Stipulations, Promisor Death, and Novation

Passage 7645 of 9271 · Latin

Summary

Explains the rule that novation cannot occur through a stipulation that is not realized, and clarifies that a novation still takes place if the promisor dies while the condition is pending and the condition is realized before the inheritance is accepted, because the stipulation passes to the heir.

[IDEM libro quinto ex Plautio. ] §46.2.24.prNouatio non potest contingere ea stipulatione, quae non committitur.
[THE SAME, On Plautius, Book 5.] Novation cannot take place by a stipulation that is not realized.
nec huic contrarium est, quod, si stipulatus a Titio fuero nouandi animo sub condicione, quod mihi Sempronius debet, et pendente condicione Titius decesserit, quamuis ante aditam hereditatem condicio exstiterit, nouatio fieret: hic enim morte promissoris non extinguitur stipulatio, sed transit ad heredem cuius personam interim hereditas sustinet.
Nor is it contrary to this that, if I have entered into a stipulation with Titius under a condition, with the intention of novating what Sempronius owes me, and Titius dies while the condition is pending, even if the condition is realized before the inheritance is accepted, a novation would take place: for here the stipulation is not extinguished by the death of the promisor, but passes to the heir, whose person the inheritance meanwhile sustains.

Notes

  1. §46.2.24.prcommittitur — The verb committo is used here in a legal sense, meaning "to be realized" or "to take effect" (referring to a condition or a stipulation). It states the rule that if the new stipulation does not take effect, no novation (which requires the creation of a valid new obligation to extinguish the old one) can occur.
  2. §46.2.24.prquod ... nouatio fieret — The clause "quod ... nouatio fieret" serves as a noun clause (explanation or apposition) subject to "nec huic contrarium est" ("the fact that ... is not contrary to this"). The subjunctive "fieret" is used because the consequence is presented within a hypothetical case (introduced by "si... fuero... decesserit..."), expressing a potential or conditional result.
  3. §46.2.24.prcuius personam interim hereditas sustinet — In this relative clause modifying "heredem" (heir), "hereditas" (inheritance) is the subject and "personam" (person/legal persona) is the object. It refers to the Roman law doctrine of "hereditas iacens" (lying inheritance), where the estate itself represents or sustains the persona of the heir during the interval before the inheritance is formally accepted.

Cite this passage

Justinian I, The Digest of Justinian §46.2.24.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:46.2.24.pr

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