Notae ad Marcelli Digestorum libros
Ex libro V
Dig. 20,1,27Marcellus libro quinto digestorum. Servum, quem quis pignori dederat, ex levissima offensa vinxit, mox solvit, et quia debito non satisfaciebat, creditor minoris servum vendidit: an aliqua actio creditori in debitorem constituenda sit, quia crediti ipsius actio non sufficit ad id quod deest persequendum? quid si eum interfecisset aut eluscasset? ubi quidem interfecisset, ad exhibendum tenetur: ubi autem eluscasset, quasi damni iniuriae dabimus actionem ad quantum interest, quod debilitando aut vinciendo persecutionem pignoris exinanierit. fingamus nullam crediti nomine actionem esse, quia forte causa ceciderat: non existimo indignam rem animadversione et auxilio praetoris. Ulpianus notat: si, ut creditori noceret, vinxit, tenebitur, si merentem, non tenebitur.
Ad Dig. 20,1,27Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 129, Note 7; Bd. I, § 249, Note 5.Marcellus, Digest, Book V. A certain man gave a slave in pledge, and then placed him in chains for some trifling offence, and afterwards released him; and, because the debtor did not pay the debt, the creditor sold the slave for a lower price than he was worth when pledged. Can an action be brought by the creditor against the debtor because the suit on the loan was not sufficient to enable him to recover the deficiency? What if the debtor should have killed or blinded the slave? If he had killed him, he would be bound to produce him in court, but if he had blinded him, we should grant an action for malicious injury to the amount of the interest of the creditor; because by disabling or confining the slave the debtor had diminished the value of the pledge. Let us suppose that no action will lie on the ground of a loan, for the reason that the case has been lost. I do not think that the matter is unworthy of the attention and assistance of the Prætor. Ulpianus says, in a note, that if the debtor put the slave in chains in order to injure the creditor, he will be liable; but if he did so because he deserved punishment, he will not be.