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Justinian I · The Digest of Justinian §46.3.33.pr-46.3.33.1

Eviction of Third-Party Performance and Damaged Objects

Passage 7688 of 9271 · Latin

Summary

This section discusses the stipulator's right of action if the object is evicted after being given to a third party, and the denial of discharge when the debtor delivers an alternative object or slave wounded by himself or another.

[IDEM libro quinquagensimo secundo digestorum. ] §46.3.33.prQui sibi aut Titio fundum dari stipulatus est, quamuis fundus Titio datus fuerit, tamen, si postea euictus est, habet actionem, quemadmodum si hominem stipulatus esset et promissor statuliberum Titio dedisset isque ad libertatem peruenisset.
[THE SAME in the fifty-second book of Digests.] A person who has stipulated for a tract of land to be given to himself or to Titius, even though the land has been given to Titius, nevertheless has an action if it is afterwards evicted, just as if he had stipulated for a slave, and the promisor had given a conditionally freed slave to Titius, and that slave had attained his freedom.
§46.3.33.1Qui Stichum aut Pamphilum dari promisit, si Stichum uulnerauerat, non magis eum dando liberatur, quam si solum Stichum promisisset et a se uulneratum daret.
A person who has promised to give Stichus or Pamphilus, if he had wounded Stichus, is no more released by giving him than if he had promised Stichus alone and gave him wounded by himself.
item qui hominem dari promisit et uulneratum a se offert, non liberatur.
Likewise, he who has promised to give a slave and offers one wounded by himself is not released.
iudicio quoque accepto si hominem is cum quo agetur uulneratum a se offert, condemnari debebit.
Also, after joinder of issue, if the defendant offers a slave wounded by himself, he must be condemned.
sed et ab alio uulneratum si det, condemnandus erit, cum possit alium dare.
But even if he gives one wounded by another, he must be condemned, since he is able to give another slave.

Notes

  1. §46.3.33.prstatuliberum — Refers to a "conditionally freed slave" (statuliber), a slave whose manumission is specified (e.g., by a will) to take effect upon the fulfillment of a certain condition. Because the slave automatically becomes free when the condition is met, giving such a slave results in a subsequent loss of the property, creating a situation analogous to eviction (evictio).
  2. §46.3.33.1non magis eum dando liberatur, quam si solum Stichum promisisset et a se uulneratum daret — A comparative negative construction meaning "is no more released by giving him than if..." (i.e., "just as he is not released if..., so he is not released here"). It explains that in an alternative obligation (Stichus or Pamphilus), delivering a slave whom the debtor has wounded does not discharge the debt, just as he would not be discharged if he had promised only that slave and delivered him wounded by his own act.
  3. §46.3.33.1iudicio quoque accepto — An ablative absolute meaning "even after the action has been accepted." This refers to the joinder of issue (litis contestatio) in Roman civil procedure, after which stage the legal relationship between the parties is fixed, making the requirements for the defendant to avoid condemnation stricter.

Cite this passage

Justinian I, The Digest of Justinian §46.3.33.pr-46.3.33.1. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:46.3.33.pr-46.3.33.1

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