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Justinian I · The Digest of Justinian §46.3.66.pr

Payment on Pupil's Order without Tutor's Authority

Passage 7721 of 9271 · Latin

Summary

This text addresses the legal consequences regarding debt release, exceptions, and actions for recovery (utilis actio) when a debtor or a third party pays a pupil's creditor by the pupil's order but without the tutor's authority.

[IDEM libro sexto ex Plautio. ] §46.3.66.prSi pupilli debitor iubente eo sine tutoris auctoritate pecuniam creditori eius numerauit, pupillum quidem a creditore liberat, sed ipse manet obligatus: sed exceptione se tueri potest.
[THE SAME, in his sixth book on Plautius.] If a debtor of a pupil, by the order of the pupil but without the authority of the tutor, has paid money to the pupil's creditor, he indeed releases the pupil from the creditor, but he himself remains bound; however, he can defend himself by an exception.
si autem debitor pupilli non fuerat, nec pupillo condicere potest, qui sine tutoris auctoritate non obligatur, nec creditori, cum quo alterius iussu contraxit: sed pupillus in quantum locupletior factus est, utpote debito liberatus, utili actione tenebitur.
But if he had not been a debtor of the pupil, he can neither bring an action for recovery against the pupil, who without the authority of the tutor is not bound, nor against the creditor, with whom he contracted by the order of another; but the pupil, to the extent that he has been made richer, inasmuch as he has been released from his debt, will be held liable by a useful action.

Notes

  1. §46.3.66.priubente eo — An ablative absolute consisting of the present participle iubente and the pronoun eo, which refers back to the genitive pupilli. It denotes an order given by the pupil himself, which, however, lacks legal completeness as indicated by the qualifying phrase sine tutoris auctoritate.
  2. §46.3.66.pripse manet obligatus — The subject is the debtor (debitor). Since the pupil's order lacked the tutor's authority, this payment does not constitute a valid discharge (solutio) of the debt owed to the pupil; thus, the debtor technically remains bound. However, because his payment effectively released the pupil from a debt, he can protect himself against a double claim by an exception (exceptio).
  3. §46.3.66.prcondicere — Used intransitively meaning 'to bring an action for recovery (condictio)'. It governs the datives pupillo and creditori. Normally, a third party who pays without being a debtor could bring a condictio; however, it is denied here because the pupil cannot be bound without the tutor's authority, and the creditor received payment under an order, thus precluding a direct action for recovery against either party.
  4. §46.3.66.prutili actione tenebitur — The subject of tenebitur is pupillus. Although the pupil cannot be held liable under a strict civil law action (condictio), he is held liable under a 'useful action' (utilis actio) granted by the praetor on equitable grounds, but only to the extent that he was made richer by being released from his debt.

Cite this passage

Justinian I, The Digest of Justinian §46.3.66.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:46.3.66.pr

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