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Justinian I · The Digest of Justinian §46.2.6.pr-46.2.6.1

Guarantee for the Deficit, Novation, and Single Contract

Passage 7627 of 9271 · Latin

Summary

The text explains that a stipulation to guarantee only the deficit of what is recovered does not effect a novation, and that a loan and a stipulation made in close temporal proximity are treated as a single contract.

[IDEM libro quadragensimo sexto ad Sabinum. ] §46.2.6.prSi ita fuero stipulatus: 'quanto minus a Titio debitore exegissem, tantum fideiubes?', non fit nouatio, quia non hoc agitur, ut nouetur.
[THE SAME, in the forty-sixth book on Sabinus.] If I have stipulated thus: "Do you guarantee so much as shall be less than what I recover from the debtor Titius?", a novation does not take place, because this is not intended to effect a novation.
§46.2.6.1Cum pecuniam mutuam dedit quis sine stipulatione et ex continenti fecit stipulationem, unus contractus est.
When someone has given money as a loan without a stipulation, and immediately afterwards makes a stipulation, it is a single contract.
idem erit dicendum et si ante stipulatio facta est, mox pecunia numerata sit.
The same must be said even if the stipulation was made beforehand, and the money was paid out shortly afterwards.

Notes

  1. §46.2.6.prquanto minus a Titio debitore exegissem, tantum fideiubes — The correlation quanto minus... tantum means "by how much less I should have exacted, so much (of that deficiency)". exegissem (subjunctive pluperfect) represents a future event (the exaction and resulting deficiency) viewed retrospectively as a completed condition from a past perspective.
  2. §46.2.6.prhoc agitur, ut nouetur — The phrase id/hoc agi ut... is a legal idiom meaning "to intend to..." or "to act with the purpose of...". Here, with the negation, it indicates that there is no intention to effect a novation.
  3. §46.2.6.1ex continenti — A legal idiom meaning "immediately" or "without interval" (synonymous with *in continenti*). It serves as a criterion where preceding and succeeding acts are temporally connected closely enough to be legally regarded as a single transaction (unus contractus).

Cite this passage

Justinian I, The Digest of Justinian §46.2.6.pr-46.2.6.1. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:46.2.6.pr-46.2.6.1

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