1855 Legal Document In arbitrio solventis dicere quod potius

[Anonymous]

Hello again everyone. I am from the land of wood and water.

I would be grateful if you could assist me by translating the sentence below. It is from an old English case decided in 1855 which dealt with debtors and apportionment. I have tried quite a few online translators and legal dictionaries but they are of limited or no assistance.

"In arbitrio solventis dicere quod potius debitum voluerit solutum"

Grateful for your assistance.

 

[Iynx]

Oh dear, oh dear. I think this is incomprehensible without some context. The learned judge appears to be quoting here from the Digests of Justinian 46.3.1. At this point the Digests are citing a jurist named Domitius Ulpianus, who died in 223 AD, and who, in the text cited, was in turn was commenting on a first-century jurist named Sabinus:

Ulpianus 43 ad sab.

Quotiens quis debitor ex pluribus causis unum debitum solvit, est in arbitrio solventis dicere, quod potius debitum voluerit solutum, et quod dixerit, id erit solutum: possumus enim certam legem dicere ei quod solvimus. quotiens vero non dicimus, in quod solutum sit, in arbitrio est accipientis, cui potius debito acceptum ferat, dummodo in id constituat solutum, in quod ipse, si deberet, esset soluturus quoque debito se exoneraturus esset, si deberet, id est in id debitum, quod non est in controversia, aut in illud, quod pro alio quis fideiusserat, aut cuius dies nondum venerat: aequissimum enim visum est creditorem ita agere rem debitoris, ut suam ageret. permittitur ergo creditor constituere, in quod velit solutum, dummodo sic constituamus, ut in re sua constitueret, sed constituere in re praesenti, hoc est statim atque solutum est...

Now this is difficult, somewhat technical Latin—at least I find it so. I did attempt a translation of my own, and got the gist of it. But the “gold standard” of this in English is the version of one Samuel Smith:

Ulpianus, On Sabinus, Book XLIII.
Whenever a debtor, who owes several debts, pays one of them, he has the right to state which obligation he prefers to discharge, and the one which he selects shall be paid, for we can establish a certain rule with reference to what we pay. When, however, we do not indicate which debt is paid, he who receives the money has the right to say on what claim he will credit it, provided he decides that it shall be credited on a debt which, if he himself owed it, he would have paid, and be discharged from liability, where he actually owed it, that is to say a'n obligation which is not in dispute; or one for which no surety has been given, or which has not yet matured; for it appears perfectly just for the creditor to treat the property of the debtor as he would treat his own. Therefore, the creditor is permitted to select the debt which he desires to be paid, provided that he makes his selection as he would do with reference to his own property; he must, however, decide immediately, that is, as soon as payment is made...

I have no idea why there’s an apostrophe in that “an” but I’ve checked two different texts, and it's there in both of them.

I have put your words, and Smith's version of them, in boldface.

Does this answer your question? I would be curious to know how all this applies to your ninteenth-century case.

 

[Cato]

I also found the quote from Justinian's Digest, and I agree with lynx translation. This is clearly about the right of the debtor to decide which of two or more debts owed to a creditor is to be paid down when he makes a payment (because the debtor wants to pay down a higher-interest debt before a lower interest one).

Since Justinian is 6th century--even though he's quoting a 3rd-century jurist--we would expect some medievalisms in his Latin. This explains quis for the classical qui, and est...dicere (lit. "he is to say" for something like licet ei dicere.

 

[Anonymous]

Thanks very much to Lynx especially as well as to chjones.

Your help is much appreciated.

How the question arose is that I have a matter before the Court of Appeal in which the Attorney on the other side purported to translate the text in question.

His "translation" was "It lies in the judgment of the debtor in discharging the debt to apportion the debt as he wishes".

The above "translation" was of course advantegeous to his case. He is trying to say that a debtor has the right to apportion payments between principal and interest for a single debt. He sought to rely upon the 1855 case of Nash v Hodgson in suport of that point.

However in my reading of the case it spoke to several debts rather than just one, so I was a bit skeptical about his translation.

Would it be possible for either of you to email me a copy of the page from the book which translated the text along with a copy of the cover page so that I could give it to the Judge tommorrow?

I understand if you can't.
Much obliged.

 

[Cato]

This is very interesting; the quote used by itself is ambiguous on whether there is a single debt or more than one debt. It's at least arguable, though I'd point out that if the debt were to be "apportioned" the text would use divisum rather than solutum - "discharged". Note also that solutum is cognate to the earlier solventis, which he correctly translated as "discharging"; in effect the translator taking the same word and translating it two different ways within the same sentence!

In context it is clear we are talking about more than one debt (ex pluribus causis) and the debtor's right to choose which one is to be paid off/down.

As for the page from the book, I can't find this on-line, so I suspect lynx has a written copy.

 

[Iynx]

First of all, I am guilty of a typo; it's Samuel Scott, not Samuel Smith.

Secondly: I do not have immediate access to a paper version. The text is available at http://www.constitution.org/sps/sps.htm .
The "title page" of the website is as follows:


**********************************************************

THE CIVIL LAW

Including

The Twelve Tables, The Institutes of Gaius, The Rules of
Ulpian, The Opinions of Paulus, The Enactments
of Justinian, and The Constitutions of Leo:

Translated from the original Latin,
edited, and compared with all accessible systems
of jurisprudence ancient and modern.

By S. P. SCOTT, A. M.

Author of "History of the Moorish
Empire in Europe," Translator of
the "Visigothic Code"

IN SEVENTEEN VOLUMES

Cincinnati
The Central Trust Company
Executor of the Estate Samuel P. Scott, Deceased
Publishers

Copyright, 1932
by the Central Trust Company
Executor of the Estate Samuel P. Scott, Deceased
[Copyright expired without renewal]

***********************************************************

Thirdly: as I read the Latin, there is no question: this text is very defintely discussing a debtor who owes more than one debt. Whether the reasoning used in this discussion might also be used with respect to a single debt considered as divided into principal and interest is another question, one not specifically addressed in this text, and one certainly beyond my competence.

If the reason that the 1855 decision is now relevant is that it established some sort of precedent, does not the question depend on the precise nature of the 1855 dispute and its adjudication, rather than on any detail of the Latin of the Digests?