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Justinian I · The Digest of Justinian §46.7.16.pr

Denial of Action against Surety Ready to Pay Share

Passage 7826 of 9271 · Latin

Summary

Discusses that in a lawsuit against sureties under a stipulation for payment of a judgment, an action should not be granted against a surety who is ready to pay his share voluntarily, and explains the reasoning.

[NERATIUS libro tertio membranarum. ] §46.7.16.prEx iudicatum solui stipulatione ob rem non defensam cum uno ex fideiussoribus agere uolo: is, quod pro parte eius fit, soluere mihi paratus est: non debet mihi in eum dari iudicium.
[NERATIUS, Parchments, book 3.] Under a stipulation for the payment of a judgment, because the case was not defended, I wish to bring an action against one of the sureties; he is ready to pay me what corresponds to his share; an action against him ought not to be granted to me.
neque enim aequum est aut iudicio destringi aut ad infitiationem compelli eum, qui sine iudice dare paratus est, quo non amplius aduersarius eius per iudicem ab eo consecuturus est.
For indeed, it is not fair that a person who is ready to pay without a judge should either be harassed by a trial or compelled to a denial, since his opponent is not going to obtain from him through a judge any more than that.

Notes

  1. §46.7.16.prquod pro parte eius fit — "What corresponds to his share." The verb fit (from fieri) is used here in the sense of "to amount to" or "to correspond to." The phrase pro parte eius means "in proportion to his share."
  2. §46.7.16.prnon debet mihi in eum dari iudicium — "An action against him ought not to be granted to me." The phrase iudicium dare refers to the praetor's granting of a trial or formula to the plaintiff. The prepositional phrase in eum modifies iudicium, meaning "an action against him."
  3. §46.7.16.prquo non amplius aduersarius eius per iudicem ab eo consecuturus est — The ablative relative pronoun quo functions as the ablative of comparison with the comparative amplius ("more than that [which he is ready to pay]"). The active periphrastic conjugation consecuturus est expresses future likelihood or destiny ("is not going to obtain").

Cite this passage

Justinian I, The Digest of Justinian §46.7.16.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:46.7.16.pr

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