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Justinian I · The Digest of Justinian §46.3.46.pr-46.3.46.2

Eviction and Fraudulent Valuation in Datio in Solutum

Passage 7701 of 9271 · Latin

Summary

This passage explains the survival of the original obligation when a thing given in lieu of payment is evicted, and the effect when an estate overvalued through fraud is delivered.

[MARCIANUS libro tertio regularum. ] §46.3.46.prSi quis aliam rem pro alia uolenti soluerit et euicta fuerit res, manet pristina obligatio.
[MARCIANUS in the third book of Rules.] If anyone pays to a willing person one thing instead of another, and the thing is evicted, the original obligation remains.
etsi pro parte fuerit euicta, tamen pro solido obligatio durat: nam non accepisset re integra creditor, nisi pro solido eius fieret.
Even if it is evicted in part, the obligation nevertheless continues for the whole; for the creditor, before performance, would not have accepted it unless it became his in its entirety.
§46.3.46.1Sed et si duos fundos uerbi gratia pro debito dederit, euicto altero fundo remanet integra obligatio.
But also, if he gives, for example, two estates for a debt, and one of the estates is evicted, the obligation remains intact.
tunc ergo res pro re soluta liberationem praestat, cum pro solido facta est suscipientis.
Therefore, a thing paid instead of another only brings release when it has become the property of the recipient in its entirety.
§46.3.46.2Sed et si quis per dolum pluris aestimatum fundum in solutum dederit, non liberatur, nisi id quod deest repleatur.
But also, if any one through fraud gives in lieu of payment an estate valued at more than its worth, he is not released unless that which is lacking is made up.

Notes

  1. §46.3.46.prre integra — Ablative absolute. It means "while the matter is untouched" or "before any performance has taken place," referring to the stage where the creditor decides whether or not to accept the substitute performance.
  2. §46.3.46.preius — In the clause pro solido eius fieret following the conjunction nisi, eius is a genitive pronoun referring to the preceding creditor. Used with fieri (to become someone's property, genitive of possession), it means "unless it became the creditor's in its entirety."
  3. §46.3.46.1suscipientis — Genitive singular of the present participle suscipiens (the recipient). This is another instance of the construction fieri (facta est) + genitive (genitive of possession), meaning "becomes the property of the recipient."

Cite this passage

Justinian I, The Digest of Justinian §46.3.46.pr-46.3.46.2. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:46.3.46.pr-46.3.46.2

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