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Justinian I · The Digest of Justinian §46.2.33.pr

Donor's Benefit of Competence Against Donee's Creditor

Passage 7654 of 9271 · Latin

Summary

Explains that when a donor, delegated by the donee, assumes an obligation to the donee's creditor, the donor cannot assert the defense of the benefit of competence against that creditor.

[TRYPHONINUS libro septimo disputationum. ] §46.2.33.prSi Titius donare mihi uolens delegatus a me creditori meo stipulanti spopondit, non habebit aduersus eum illam exceptionem, ut quatenus facere potest condemnetur: nam aduersus me tali defensione merito utebatur, quia donatum ab eo petebam, creditor autem debitum persequitur.
[TRYPHONINUS, Disputations, Book 7.] If Titius, wishing to make a donation to me, being delegated by me, promised to my stipulating creditor, he will not have against him that exception, that he be condemned only so far as he is able to perform; for against me he would have rightly used such a defense, because I was seeking from him what was donated, whereas the creditor is pursuing a debt.

Notes

  1. 46.2.33.prexceptionem, ut quatenus facere potest condemnetur — The ut-clause is an appositive noun clause that concretely explains the content of the exceptionem (exception). Within this clause, 'quatenus facere potest' is a legal formulaic expression referring to the 'benefit of competence' (beneficium competentiae), which limits the defendant's liability to their actual financial means.
  2. 46.2.33.prmerito utebatur — The indicative imperfect 'utebatur' is used instead of the subjunctive to emphasize the objective entitlement or naturalness of the defense ('he would have rightly used') in a counterfactual past context (i.e., if the demand had been made by me).

Cite this passage

Justinian I, The Digest of Justinian §46.2.33.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:46.2.33.pr

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