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Justinian I · The Digest of Justinian §46.6.12.pr

Claim against a Single Surety and Restriction of Division

Passage 7810 of 9271 · Latin

Summary

The passage explains that when multiple sureties are provided, the ward should sue a single surety for the full amount to avoid procedural dispersion, and that unlike other creditors, the ward's suit deprives sureties of the benefit of division of action.

[PAPINIANUS libro duodecimo quaestionum. ] §46.6.12.prSi plures fideiussores a tutore pupillo dati sunt, non esse eum distringendum, sed in unum dandam actionem ita, ut ei, qui conueniretur, actiones praestarentur.
[PAPINIANUS, Questions, Book XII] If several sureties have been provided by a tutor for a ward, the ward should not be distracted by splitting his actions, but the action should be granted against one surety, on the condition that the actions against the others are assigned to him who is sued.
nec quisquam putauerit ab iure discessum, postquam pro ea parte placuit tutores condemnari, quam administrauerunt, et ita demum in solidum, si res a ceteris non seruetur et idonea culpa detegatur, quod suspectum facere supersederit: nam aequitas arbitri atque officium uiri boni uidetur eam formam iuris desiderasse.
And no one should think that there has been a departure from the law, after it has been decided that tutors are to be condemned only for that share which they administered, and only in full if the property is not recovered from the others and a sufficient negligence is discovered in that he neglected to accuse them as suspected; for the equity of the arbitrator and the duty of an honest man seem to have required this form of law.
ceterum fideiussores ciuiliter in solidum obligati ceteris quidem agentibus, ut diuidatur actio, impetrare possunt: pupillo uero agente, qui non ipse contraxit, sed in tutorem incidit et ignorat omnia, beneficium diuidendae actionis iniuriam habere uisum est, ne ex una tutelae causa plures ac uariae quaestiones apud diuersos iudices constituerentur.
However, sureties who are bound for the whole under civil law can indeed, when others sue, obtain that the action be divided; but when the ward sues—who did not contract himself, but happened upon a tutor and is ignorant of everything—it has been deemed to involve an injustice to grant the benefit of dividing the action, lest from a single case of guardianship, several and diverse issues should be established before different judges.

Notes

  1. §46.6.12.prnon esse eum distringendum — eum is the accusative referring to the preceding pupillo (the ward). The accusative with infinitive clause contains the gerundive distringendum (from distringere, meaning 'to distract' or 'to harass'), indicating that the ward should not be distracted or harassed by dividing his actions among multiple sureties.
  2. §46.6.12.prnec quisquam putauerit — putauerit is a perfect subjunctive in the third person singular, used as an independent subjunctive to express a prohibition or mild command ('let no one think' or 'no one should think'). It takes the accusative with infinitive clause ab iure discessum [esse] ('that there has been a departure from the law').
  3. §46.6.12.pret ita demum in solidum — An elliptical expression continuing the construction of placuit tutores condemnari from the preceding clause. The verb condemnari is understood, meaning 'and after it was decided that they should be condemned in full (in solidum) only if...'.

Cite this passage

Justinian I, The Digest of Justinian §46.6.12.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:46.6.12.pr

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