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Justinian I · The Digest of Justinian §50.16.71.pr-50.16.71.1

Distinction between Acquiring and Receiving and Guarantee Clauses

Passage 8885 of 9271 · Latin

Summary

Ulpianus explains the conceptual distinction between the legal terms 'to acquire' and 'to receive', and also clarifies the legal effect of the guarantee clause in a stipulation.

[ULPIANUS libro septuagensimo nono ad edictum. ] §50.16.71.prAliud est 'capere', aliud 'accipere'.
[ULPIANUS, on the Edict, book 79.] It is one thing 'to acquire', and another 'to receive'.
capere cum effectu accipitur: accipere, et si quis non sic accepit, ut habeat.
To acquire is understood as with effect; to receive, even if someone did not receive in such a way as to keep it.
ideoque non uidetur quis capere, quod erit restituturus: sicut peruenisse proprie illud dicitur, quod est remansurum.
And therefore, one is not deemed to acquire that which he is to restore; just as that is properly said to have arrived which is to remain.
§50.16.71.1Haec uerba 'his rebus recte praestari' hoc significant, ne quid periculum uel damnum ex ea re stipulator sentiret.
These words 'that guarantee be properly made in these matters' mean this: that the stipulator should not suffer any risk or loss from that matter.

Notes

  1. 50.16.71.prcapere cum effectu accipitur — A play on the polysemy of the verb 'accipere' (to receive, to understand). Here, 'accipitur' is used in the sense of 'is understood' or 'is interpreted', explaining that the concept of 'capere' means acquisition with actual effect (cum effectu).
  2. 50.16.71.praccipere, et si quis non sic accepit, ut habeat — An elliptical construction where the verb 'accipitur' from the previous clause is implied after 'accipere'. 'et si' expresses concession ('even if'), and 'ut habeat' is a subjunctive clause of result or manner, meaning 'in such a way as to keep it'.
  3. 50.16.71.1ne quid periculum uel damnum ex ea re stipulator sentiret — Although the main verb 'significant' is in the present tense, the verb in the 'ne' clause is in the imperfect subjunctive ('sentiret'). This is an exceptional sequence of tenses, shifting the perspective to the historical moment of the individual 'stipulatio' (stipulation) or the original intention of the contracting parties.

Cite this passage

Justinian I, The Digest of Justinian §50.16.71.pr-50.16.71.1. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:50.16.71.pr-50.16.71.1

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