Humanitext Reader

Justinian I · The Digest of Justinian §50.17.23.pr

Scope of Liability for Fraud and Negligence in Contracts

Passage 9083 of 9271 · Latin

Summary

This fragment classifies the scope of liability for wilful deceit and negligence in various contracts, determines the validity and limits of party agreements, and regulates exemption from liability in cases of force majeure.

[IDEM libro uicensimo nono ad Sabinum. ] §50.17.23.prContractus quidam dolum malum dumtaxat recipiunt, quidam et dolum et culpam.
[THE SAME, in his twenty-ninth book on Sabinus.] Certain contracts admit of wilful deceit only, others of both wilful deceit and negligence.
dolum tantum: depositum et precarium.
Of wilful deceit only: deposit and precarium.
dolum et culpam mandatum, commodatum, uenditum, pignori acceptum, locatum, item dotis datio, tutelae, negotia gesta: in his quidem et diligentiam.
Of wilful deceit and negligence: mandate, loan for use, sale, pledge, lease, likewise the giving of a dowry, guardianships, and management of affairs; in these indeed diligence is also required.
societas et rerum communio et dolum et culpam recipit.
Partnership and community of property admit of both wilful deceit and negligence.
sed haec ita, nisi si quid nominatim conuenit (uel plus uel minus) in singulis contractibus: nam hoc seruabitur, quod initio conuenit (legem enim contractus dedit), excepto eo, quod Celsus putat non ualere, si conuenerit, ne dolus praestetur: hoc enim bonae fidei iudicio contrarium est: et ita utimur.
But these rules apply in this manner, unless something has been specifically agreed upon (either more or less) in individual contracts; for that which was agreed upon at the beginning shall be observed (for it has given the law of the contract), except for that which Celsus thinks is not valid, namely, if it has been agreed that wilful deceit is not to be answered for; for this is contrary to an action of good faith, and such is our practice.
animalium uero casus mortesque, quae sine culpa accidunt, fugae seruorum qui custodiri non solent, rapinae, tumultus, incendia, aquarum magnitudines, impetus praedonum a nullo praestantur.
But accidental occurrences and deaths of animals which happen without negligence, flights of slaves who are not accustomed to be guarded, robberies, riots, fires, floods, and attacks of bandits are answered for by no one.

Notes

  1. §50.17.23.prin his quidem et diligentiam — Ellipsis of the verb. A verb such as recipiunt (admit of) or a passive expression like praestari oportet (ought to be furnished) is omitted. The phrase should be understood as 'in these indeed, even diligence is required/admitted.'
  2. §50.17.23.prexcepto eo — Ablative absolute. The pronoun eo and the perfect participle excepto form an ablative absolute, which is followed by a noun clause introduced by quod in apposition with eo. It functions to introduce an exception ('except for that which...').
  3. §50.17.23.prlegem enim contractus dedit — Syntax of contractus. Since contractus (fourth declension) can be either nominative singular ('contract') or genitive singular ('of the contract'), two readings are possible. We take the subject to be the preceding clause quod initio conuenit (what was agreed upon at the beginning), with contractus as a genitive qualifying legem ('for [the agreement] gave the law of the contract'). Alternatively, contractus could be the subject ('for the contract gave the law').

Cite this passage

Justinian I, The Digest of Justinian §50.17.23.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:50.17.23.pr

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