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Justinian I · The Digest of Justinian §46.3.71.pr-46.3.71.3

Payment to a Third Party and Ratification of Agent's Receipt

Passage 7726 of 9271 · Latin

Summary

This chunk discusses the validity of paying the remaining debt to a designated third party after partial receipt, and the legal effects of ratifying a payment made to an agent on a surety's right of recourse, formal debt release, and pending litigation.

[IDEM libro uicensimo septimo digestorum. ] §46.3.71.prCum decem mihi aut Titio dari stipulatus quinque accipiam, reliquum promissor recte Titio dabit.
[THE SAME, in his twenty-seventh book of the Digests.] When I have stipulated for ten to be paid to me or to Titius, and I receive five, the promisor will rightly pay the remainder to Titius.
§46.3.71.1Si fideiussor procuratori creditoris soluit et creditor post tempus, quo liberari fideiussor poterit, ratum habuit, tamen quia fideiussor, cum adhuc ex causa fideiussionis teneretur, soluit, nec repetere potest nec minus agere aduersus reum mandati potest, quam si tum praesenti dedisset.
If a surety has paid the creditor's procurator, and the creditor ratifies it after the time when the surety could have been released, nevertheless, because the surety paid while he was still bound under the cause of suretyship, he cannot recover what was paid, nor can he bring an action based on mandate against the principal debtor to any less extent than if he had paid the creditor who was present at the time.
§46.3.71.2Item si ignorans creditor procuratori suo solutum seruo debitoris filioue acceptum fecerit, postea autem rescierit et ratum habuerit, confirmatur solutio et quod acceptum latum sit, nullius momenti est: et contra, si ratum non habuerit, quod acceptum fecerit, confirmatur.
Likewise, if the creditor, ignorant of the payment made to his procurator, has given a formal release to the debtor's slave or son, and later becomes aware of it and ratifies the payment, the payment is confirmed, and the formal release given is of no effect; conversely, if he does not ratify it, the formal release he gave is confirmed.
§46.3.71.3Sed si ignorans solutum litem contestatus est, si pendente iudicio ratum habuit, absolui oportet illum, cum quo actum est, si ratum non habuit, condemnari.
But if, being ignorant of the payment, he has joined issue, and if he ratifies the payment while the trial is pending, the defendant must be acquitted; but if he does not ratify it, the defendant must be condemned.

Notes

  1. §46.3.71.prdari stipulatus — dari is the passive infinitive, and stipulatus is the perfect participle of the deponent verb stipulor (to stipulate). It governs an accusative and infinitive construction, meaning 'having stipulated for [ten] to be paid to me or Titius.'
  2. §46.3.71.1post tempus, quo liberari fideiussor poterit — In the relative clause 'quo liberari... poterit', 'poterit' is in the future indicative, referring to the point in time when the surety could have been released (e.g., by limitation). Even if the ratification ('ratum habuit') occurred after this point, the payment remains valid as it was made while the obligation was still in force.
  3. §46.3.71.1minus agere aduersus reum mandati potest — reus mandati refers to the debtor under the mandate, i.e., the principal debtor who commissioned the surety. The double negative expression 'nec minus agere... quam si...' ('nor can he bring an action... to any less extent than if...') indicates that despite the subsequent ratification of the payment to the agent, the surety is entitled to the same right of recourse as if he had paid the creditor in person.
  4. §46.3.71.2acceptum fecerit — acceptum facere (or acceptum ferre) refers to the formal release of a debt by entry or oral stipulation (acceptilatio) in Roman law. The text addresses the validity of this formal release made to those under the debtor's power (slave or son) while the creditor was still ignorant of the payment made to his agent.

Cite this passage

Justinian I, The Digest of Justinian §46.3.71.pr-46.3.71.3. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:46.3.71.pr-46.3.71.3

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