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Justinian I · The Digest of Justinian §46.3.37.pr

Payment of Share by a Guarantor and Scope of Discharge

Passage 7692 of 9271 · Latin

Summary

It explains the legal treatment when one of the guarantors pays his own share, stating that while it is treated as if the principal debtor paid it, the payment does not reduce the overall principal debt but only releases that specific guarantor.

[IDEM libro secundo ad Urseium Ferocem. ] §46.3.37.prQuotiens unus ex fideiussoribus suam partem soluisset, tamquam negotium reo gessisset, perinde habendum est, ac si reus ipse unius fideiussoris partem soluisset: sed tamen ut non ex sorte decedat, sed is fideiussor solus liberatur, cuius nomine solutio facta fuerit.
[THE SAME in the second book on Urseius Ferox.] Whenever one of the guarantors has paid his share, just as if he had managed the business of the principal debtor, it must be treated in the same way as if the principal debtor himself had paid the share of that one guarantor; but yet on the condition that it is not deducted from the principal debt, but that guarantor alone is released in whose name the payment has been made.

Notes

  1. §46.3.37.prtamquam negotium reo gessisset — The combination of 'tamquam' with the subjunctive pluperfect ('gessisset') expresses a hypothetical assumption, as if he had conducted the business ('negotium gerere', referring to negotiorum gestio) for the principal debtor ('reus').
  2. §46.3.37.prsed tamen ut non ex sorte decedat — The 'ut' clause expresses a restriction or qualification to the preceding statement. 'sorte' (ablative of 'sors') means the 'principal sum/debt'. 'decedat' is used intransitively to mean 'is deducted/decreased'. Thus, the phrase indicates that the payment does not reduce the overall principal debt.

Cite this passage

Justinian I, The Digest of Justinian §46.3.37.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:46.3.37.pr

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