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Justinian I · The Digest of Justinian §50.17.42.pr

Pardonable Ignorance of Heirs and Sureties in Suits

Passage 9102 of 9271 · Latin

Summary

Heirs and sureties who succeed to another's position are excused for their ignorance of the debt when acting as defendants, but as plaintiffs, they must thoroughly investigate the case beforehand and act with certainty.

[GAIUS libro nono ad edictum prouinciale. ] §50.17.42.prQui in alterius locum succedunt, iustam habent causam ignorantiae, an id quod peteretur deberetur.
[GAIUS, in his ninth book on the Provincial Edict.] Those who succeed to the place of another have a just cause of ignorance as to whether what is being claimed is owed.
fideiussores quoque non minus quam heredes iustam ignorantiam possunt allegare.
Sureties, no less than heirs, can allege just ignorance.
haec ita de herede dicta sunt, si cum eo agetur, non etiam si agat: nam plane qui agit, certus esse debet, cum sit in potestate eius, quando uelit experiri, et ante debet rem diligenter explorare et tunc ad agendum procedere.
This is so said of an heir if action is brought against him, but not also if he brings action: for clearly he who brings action ought to be certain, since it is in his power when he wishes to try the matter, and he ought beforehand to investigate the matter diligently and only then proceed to bring action.

Notes

  1. §50.17.42.pran id quod peteretur deberetur — The clause introduced by an is an indirect question explaining the noun ignorantiae. The imperfect subjunctive verbs peteretur and deberetur do not follow historical sequence but rather reflect a potential or hypothetical nuance regarding the existence of the claim and the debt.
  2. §50.17.42.prhaec ita de herede dicta sunt, si cum eo agetur, non etiam si agat — The correlation ita ... si expresses a restrictive condition ("this is so only if"). cum eo agetur is a third-person singular passive ("if action is brought against him", i.e., as a defendant), whereas agat is an active subjunctive present ("if he brings action", i.e., as a plaintiff).
  3. §50.17.42.prcum sit in potestate eius, quando uelit experiri — The conjunction cum is causal and takes the subjunctive sit. quando uelit experiri is an indirect question depending on in potestate eius or serving as the logical subject of sit, meaning "when he wishes to try (bring) the action." experiri is the present infinitive of the deponent verb experior.

Cite this passage

Justinian I, The Digest of Justinian §50.17.42.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:50.17.42.pr

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