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Justinian I · The Digest of Justinian §46.2.25.pr

Distinction Between Authority to Receive Payment and Power to Novate

Passage 7646 of 9271 · Latin

Summary

Celsus explains, using the example of persons under power, that the capacity to receive a valid payment does not necessarily confer the power to legally effect a novation.

[CELSUS libro primo digestorum. ] §46.2.25.prNon ideo nouare ueterem obligationem quisquam recte potest, quod interdum recte ei soluitur: nam et his, qui in nostra potestate sunt, quod ab his creditum est recte interdum soluitur, cum nemo eorum per se nouare priorem obligationem iure possit.
[CELSUS, Digest, Book 1.] A person cannot rightfully novate an old obligation for the mere reason that payment is sometimes rightfully made to him; for payment is also sometimes rightfully made to those who are under our power in respect of what has been loaned by them, although none of them can by law novate a prior obligation by themselves.

Notes

  1. §46.2.25.prNon ideo... quod — A construction meaning "not because... therefore...", which denies that a certain reason is sufficient for a conclusion. This principle is supported by the subsequent clause starting with `nam`.
  2. §46.2.25.prquod ab his creditum est — A relative clause acting as the subject of `soluitur`. `creditum est` refers to a situation where a person under power (filius familias) has loaned money to a third party, thereby establishing a debt.
  3. §46.2.25.prcum... possit — A `cum` clause with the subjunctive `possit`, here expressing concession ("although") or circumstances ("while"). It explains the legal asymmetry between the capacity to receive payment (which is valid) and the capacity to novate (which is invalid).

Cite this passage

Justinian I, The Digest of Justinian §46.2.25.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:46.2.25.pr

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