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Justinian I · The Digest of Justinian §46.7.14.pr-46.7.14.1

Defense after Partial Payment and Security for Acquittal

Passage 7824 of 9271 · Latin

Summary

This section discusses how a case can still be defended even if one of two guarantors has paid due to the case being undefended, and the necessity of providing security for the principal's acquittal in the main trial when the guarantors are sued.

[IULIANUS libro quinquagensimo quinto digestorum. ] §46.7.14.prSi ex duobus fideiussoribus, qui iudicatum solui spoponderant, alter ob rem non defensam partem suam soluerit, nihilo minus res defendi poterit.
[IULIANUS, Digests, book 55.] If, out of two guarantors who had promised the payment of the judgment, one has paid his share on account of the case being undefended, the case can nevertheless be defended.
nec tamen is, qui soluerit, repetet: stipulatio enim pro parte eius perempta est, perinde ac si acceptum ei factum fuisset.
However, the one who paid shall not seek recovery; for the stipulation has been extinguished in respect of his share, just as if a formal release had been made to him.
§46.7.14.1Quotiens ex stipulatione iudicatum solui ob rem non defensam agitur cum fideiussoribus, non est iniquum caueri dominum priore iudicio absolui, quia omissa cautione fideiussores mandati iudicio non consequentur aut certe cogantur dominum priore iudicio defendere.
Whenever an action is brought against guarantors based on the stipulation for the payment of the judgment on account of the case being undefended, it is not unfair that security be provided that the principal be acquitted in the prior trial; for if the security is omitted, the guarantors will not recover through the action of mandate, or at least they would be compelled to defend the principal in the prior trial.

Notes

  1. §46.7.14.pracceptum ei factum fuisset — Refers to a formal release (acceptilatio). This impersonal passive expression indicates that the creditor made an acknowledgment of receipt (acceptum facere) to the debtor, used here as an analogy for the extinction of the stipulation regarding the individual share of one guarantor.
  2. §46.7.14.1caueri dominum priore iudicio absolui — caueri is an impersonal passive infinitive taking dominum ... absolui (accusative and infinitive construction) as its subject or content. It means 'that security be provided that the principal is acquitted in the prior trial'.
  3. §46.7.14.1consequentur aut certe cogantur — The former (consequentur) is a future indicative (from the 3rd conjugation deponent consequor), while the latter (cogantur) is a present subjunctive passive (from cogo), showing a mismatch in mood and tense. The subjunctive cogantur is used to soften the expression of the alternative consequence ('or at least they might be compelled'), in contrast to the predictive indicative of the first clause.

Cite this passage

Justinian I, The Digest of Justinian §46.7.14.pr-46.7.14.1. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:46.7.14.pr-46.7.14.1

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