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Justinian I · The Digest of Justinian §46.8.18.pr

Partial Ratification and Repeated Actions in Stipulations

Passage 7849 of 9271 · Latin

Summary

Discusses the scope of liability in a stipulation guaranteeing ratification when only partial ratification occurs, and explains that actions can be brought repeatedly as damage arises, comparing it to a stipulation of threatened damage.

[POMPONIUS libro uicensimo sexto ad Sabinum. ] §46.8.18.prSi procurator ratam rem dominum heredemue eius habiturum cauerit et unus ex heredibus domini ratum habeat, alter non habeat, sine dubio committetur stipulatio pro ea parte, pro qua ratum non habebitur, quia in id committitur, quod stipulatoris intersit.
[POMPONIUS, On Sabinus, Book XXVI] If an agent has guaranteed that the principal or his heir will ratify the matter, and one of the heirs of the principal ratifies it while another does not, the stipulation will without doubt be forfeited for that part which is not ratified, because it is forfeited to the extent of the stipulator's interest.
nam et si ipse dominus pro parte ratum habuerit, pro parte non habuerit, non ultra quam in partem committetur stipulatio, quia in id committitur, quod intersit agentis.
For even if the principal himself has ratified it in part and has not ratified it in part, the stipulation will not be forfeited beyond that part, because it is forfeited to the extent of the interest of the party acting.
et ideo saepius ex ea stipulatione agi potest, prout intersit agentis, quod litigat, quod consumit, quod aduocat, quod damnatus soluit, sicut in stipulatione damni infecti accidere potest, ut is qui stipulatus sit subinde agat: cauet enim 'si quid ibi ruet scindetur fodietur aedificabitur'. finge ergo subinde damnum dari: non erit dubium, quin agere possit: nam si toto damno computato tunc agendum est, propemodum non ante aget, quam dies stipulationis praeterierit, intra quem si damnum datum sit, stipulatione cautum erit: quod uerum non est.
And therefore, action can be brought repeatedly under that stipulation, according to the interest of the party acting—namely, that he litigates, that he incurs expenses, that he employs advocates, and that he pays under judgment—just as it can happen in the case of a stipulation of threatened damage that the one who has stipulated may bring an action from time to time; for it provides, "if anything there shall collapse, be split, be dug up, or be built." Suppose, therefore, that damage is done from time to time: there will be no doubt that he can bring an action; for if action is to be brought only after the entire damage has been calculated, he would virtually not bring his action before the term of the stipulation has expired, within which, if damage is done, it is secured by the stipulation; which is not true.

Notes

  1. §46.8.18.prcommittetur stipulatio — The verb committere is used here in the sense of "to be forfeited" or "to be triggered" (of a condition or penalty clause), meaning with its subject stipulatio that the right of action based on the stipulation is activated.
  2. §46.8.18.prquod stipulatoris intersit — A construction with the impersonal verb interest governing the genitive (stipulatoris), indicating "the extent of the interest (concern) of the stipulator (the defendant who demanded the guarantee)." The word agentis in the next sentence's quod intersit agentis is likewise a genitive governed by interest.
  3. §46.8.18.prquod litigat, quod consumit, quod aduocat, quod damnatus soluit — A series of noun clauses introduced by quod, explaining the concrete contents of the "interest" (losses such as litigation costs, advocate fees, and payments under judgment) of the agentis (and stipulatoris).
  4. §46.8.18.prpropemodum non ante aget, quam dies stipulationis praeterierit — A construction combining the correlative non ante ... quam ("not before... than", i.e., "only when...") with propemodum ("virtually" or "almost"). The antecedent is dies, which is followed by a relative clause. It structures the counterargument: "if he could only sue after the calculation of all damage, he would virtually not be able to sue before the expiration of the stipulation's term (which would defeat the purpose of the guarantee)."

Cite this passage

Justinian I, The Digest of Justinian §46.8.18.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:46.8.18.pr

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