Humanitext Reader

Justinian I · The Digest of Justinian §46.2.9.pr-46.2.9.2

Novation in Guardianship and Redundant Stipulations

Passage 7630 of 9271 · Latin

Summary

This section discusses the novation of guardianship obligations by a pupil, the nature of stipulations subject to a certain condition, and the legal effects of successive stipulations regarding rights of way and usufruct.

[IDEM libro quadragensimo septimo ad Sabinum. ] §46.2.9.prSi pupillus sine tutoris auctoritate rem saluam fore stipulatus pubes factus ratam stipulationem habuerit nouandi causa, tollitur tutelae actio.
[THE SAME, in the forty-seventh book on Sabinus.] If a pupil, having stipulated without the authority of his tutor that his property would be safe, upon becoming pubes, ratifies the stipulation for the sake of novation, the action on tutelage is extinguished.
si non habuerit ratum, licet tutelae egisset, habet tamen adhuc ex stipulatu actionem: sed iudex tutelae non aliter condemnare debet, quam si ex stipulatione liberatio fieret.
If he does not ratify it, even though he had brought the action on tutelage, he nevertheless still has the action on the stipulation; but the judge in the action on tutelage ought not to condemn otherwise than if a release from the stipulation were to take place.
§46.2.9.1Qui sub condicione stipulatur, quae omnimodo exstatura est, pure uidetur stipulari.
He who stipulates under a condition which is bound to be fulfilled in any event is deemed to stipulate unconditionally.
§46.2.9.2Qui actum stipulatur, deinde iter, nihil agit: item usum fructum stipulatus si usum stipuletur, nihil agit.
He who stipulates for a right of driving cattle, and then for a right of way, achieves nothing; likewise, he who has stipulated for a usufruct, if he stipulates for a use, achieves nothing.
sed qui iter stipulatus actum postea stipuletur, aliud magis stipulatur: aliud est enim iter, aliud actus.
But he who, having stipulated for a right of way, afterwards stipulates for a right of driving cattle, stipulates for something else in addition; for a right of way is one thing, and a right of driving cattle is another.

Notes

  1. §46.2.9.prrem saluam fore — This infinitive clause refers to the security/guarantee that the ward's property will be kept safe (cautio rem pupilli salvam fore). Since the pupil entered into this stipulation without the tutor's authority, it requires ratification (ratum habere) after he reaches puberty (pubes factus) to have the effect of novation.
  2. §46.2.9.prnon aliter condemnare debet, quam si — A correlative construction meaning "ought not to condemn otherwise than if...", which practically limits the condemnation to the condition that a release from the stipulation is achieved. This prevents double recovery by ensuring that the tutor is only condemned in the action on tutelage if he is released from his obligation under the stipulation.
  3. §46.2.9.2aliud magis stipulatur — The word `magis` here means "more/greater" or "rather". Since the right of driving cattle (actus) encompasses the right of way (iter) but is broader, stipulating for `actus` after `iter` means acquiring a broader/additional right. In contrast, stipulating for `iter` after `actus` achieves nothing (nihil agit) because the lesser right is already included in the greater.

Cite this passage

Justinian I, The Digest of Justinian §46.2.9.pr-46.2.9.2. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:46.2.9.pr-46.2.9.2

Please note the AI-draft status of the translation and the date accessed.

Translation, notes and summary are AI-generated drafts, revised through reader feedback.