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Justinian I · The Digest of Justinian §46.3.91.pr

Release of an Unwilling Debtor Through Novation

Passage 7746 of 9271 · Latin

Summary

On whether a debtor can be unilaterally released when present and unwilling, Labeo argues it is impossible, while Paulus contends that the creditor can achieve this practically by substituting a new debtor through novation.

[LABEO libro sexto pithanon a Paulo epitomatorum. ] §46.3.91.prSi debitor tuus non uult a te liberari et praesens est, non potest inuitus a te solui.
[LABEO, in the sixth book of the Pithana epitomized by Paulus.] If your debtor does not wish to be released by you and is present, he cannot, against his will, be released by you.
PAULUS: immo debitorem tuum etiam praesentem etiam inuitum liberare ita poteris supponendo, a quo debitum nouandi causa stipuleris: quod etiamsi acceptum non feceris, tamen statim, quod ad te attinet, res peribit: nam et petentem te doli mali praescriptio excludet.
PAULUS: On the contrary, you will be able to release your debtor, even if he is present and even against his will, in the following way: by substituting someone from whom you stipulate for the debt for the purpose of novation; and even if you do not make a formal release of this, nevertheless immediately, as far as you are concerned, the claim will be extinguished; for even if you bring an action, the plea of fraud will bar you.

Notes

  1. §46.3.91.prsolui — Passive present infinitive of the verb soluere. Corresponding to liberari (to be released) in the preceding clause, here it means 'to have the debt extinguished' by the creditor's unilateral act of receiving payment or releasing.
  2. §46.3.91.prsupponendo, a quo — supponendo is a gerund in the ablative expressing means. Its object pronoun (such as eum) is omitted, serving as the antecedent of the relative pronoun a quo. The ablative a quo is used based on the construction stipulari ab aliquo (to stipulate/exact a promise from someone).
  3. §46.3.91.prpetentem te — The present participle petentem modifies the direct object te. While it literally means 'you who are petitioning (for the original debt)', here it carries a conditional or concessive force ('even if you petition').

Cite this passage

Justinian I, The Digest of Justinian §46.3.91.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:46.3.91.pr

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