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Justinian I · The Digest of Justinian §46.3.31.pr

Personal Services of Craftsmen and Payment by a Guarantor

Passage 7686 of 9271 · Latin

Summary

The text explains that for non-substitutable obligations of doing, which depend on the specific skill of a craftsman, a guarantor's performance does not release the debtor without the creditor's consent, and analyzes the legal effects of a guarantor's actions regarding stipulations on right of way.

[IDEM libro septimo disputationum. ] §46.3.31.prInter artifices longa differentia est et ingenii et naturae et doctrinae et institutionis.
[THE SAME in the seventh book of Disputations.] Among craftsmen there is a great difference in talent, nature, training, and education.
ideo si nauem a se fabricandam quis promiserit uel insulam aedificandam fossamue faciendam et hoc specialiter actum est, ut suis operis id perficiat, fideiussor ipse aedificans uel fossam fodiens non consentiente stipulatore non liberabit reum.
Therefore, if someone has promised that a ship is to be built by himself, or an insula to be constructed, or a ditch to be made, and it was specially agreed that he should complete it by his own labor, the guarantor himself constructing it or digging the ditch will not release the debtor without the consent of the stipulator.
quare etiam si illis stipulationibus fideiussor accesserit: 'per te non fieri, quo minus mihi ire agere liceat?', prohibens ire fideiussor stipulationem non committit et, si patientiam praestet, non efficiet, quo minus committatur stipulatio.
For which reason, even if a guarantor has acceded to those stipulations: "that it shall not be brought about through you that I am prevented from passing and driving?", the guarantor who prevents passing does not commit a breach of the stipulation, and, if he should show tolerance, he will not prevent the stipulation from being breached.

Notes

  1. §46.3.31.pra se fabricandam — The gerundive construction with the ablative of agent `a se` emphasizes that the obligation is a non-substitutable personal duty to be performed by the debtor himself. This serves as the syntactic and logical basis for the subsequent conclusion that the guarantor's own performance (`fideiussor ipse...`) does not release the debtor.
  2. §46.3.31.prper te non fieri, quo minus mihi ire agere liceat? — A standard formula stipulating non-interference with right of way (`ire agere`). Since the pronoun `te` refers to the principal debtor, a disturbance by the guarantor himself (`prohibens ire fideiussor`) syntactically does not constitute a hindrance brought about 'through you' (`per te`), which explains why the guarantor's act does not trigger a breach of this specific stipulation.
  3. §46.3.31.prnon efficiet, quo minus committatur stipulatio — A double negative construction where `non efficiet` (will not bring about) is followed by a `quo minus` clause (preventing from). It means 'will not prevent the stipulation from being breached (i.e. the penalty from being incurred)'. Even if the guarantor shows tolerance, his tolerance cannot prevent the breach of contract if the principal debtor actually interferes.

Cite this passage

Justinian I, The Digest of Justinian §46.3.31.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:46.3.31.pr

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