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Justinian I · The Digest of Justinian §46.7.7.pr

Revocation of Authority, Change of Status, and Stipulations

Passage 7817 of 9271 · Latin

Summary

This section discusses how the effect of the stipulation varies depending on whether the plaintiff is in good faith or bad faith when a procurator is prohibited by the principal, and the impact of changes in the procurator's legal status.

[GAIUS libro uicensimo septimo ad edictum prouinciale. ] §46.7.7.prSi ante acceptum iudicium prohibitus fuerit procurator a domino et actor ignorans prohibitum eum esse egerit, an stipulatio committatur? et nihil aliud dici potest quam committi.
[GAIUS, on the Provincial Edict, book 27.] If, before the joinder of issue, a procurator has been prohibited by the principal, and the plaintiff, being ignorant of his prohibition, has brought the action, does the stipulation take effect? And nothing else can be said than that it does take effect.
quod si quis sciens prohibitum esse egerit, Iulianus non putat stipulationem committi: nam ut committatur, non sufficere ait cum ea persona acceptum esse iudicium, quae stipulationi comprehensa est, sed oportere etiam causam personae eandem esse, quae stipulationis interponendae tempore fuit.
But if anyone, knowing that he has been prohibited, has brought the action, Julian does not think that the stipulation takes effect; for, in order for it to take effect, he says it is not sufficient that the joinder of issue is made with that person who was comprehended in the stipulation, but it is also necessary that the status of the person remain the same as it was at the time when the stipulation was entered into.
et ideo si is, qui procurator datus est, heres exstiterit domino atque ita acceperit iudicium siue etiam prohibitus acceperit, non committitur stipulatio: nam et alias responsum esse, si quis absentem defendens satisdederit, deinde, uel procurator ab eo datus uel postquam heres ei extitit, iudicium acceperit, fideiussores non teneri.
Therefore, if he who was appointed procurator has become the heir to the principal and has thus joined issue, or even if he has joined issue after being prohibited, the stipulation does not take effect; for in other cases also it has been answered that, if anyone, in defending an absent party, has given security, and subsequently, either having been appointed procurator by him or after having become his heir, has joined issue, the guarantors are not liable.

Notes

  1. §46.7.7.prcommittatur — The verb committere in legal contexts, especially concerning stipulations (stipulationes) or penalty clauses, means that the condition is fulfilled and thus 'liability arises' or 'the stipulation takes effect.'
  2. §46.7.7.prante acceptum iudicium — The preposition ante followed by the passive participle acceptum agreeing with the noun iudicium (the so-called ab urbe condita construction). It is translated as 'before the joinder of issue' (litis contestatio).
  3. §46.7.7.prresponsum esse — An infinitive representing indirect speech, citing an authoritative legal opinion (responsum) of jurists. It indicates an objective statement of legal doctrine: 'it has been answered that...'

Cite this passage

Justinian I, The Digest of Justinian §46.7.7.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:46.7.7.pr

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