The Digest of Justinian

[THE SAME in the fifth book on all tribunals.]

​Since those to whom alimony had been left were easily making compromises, being content with a small present sum, the Divine Marcus, by a speech read in the Senate, brought it about that a compromise of alimony should not be valid otherwise than if made with the authority of the praetor. Therefore, the praetor is accustomed to intervene and, among the consenting parties, to judge whether a compromise, and what kind, ought to be admitted.

​The cognizance of the same praetor will apply to a compromise, whether a right of habitation, or clothing money, or alimony from estates is bequeathed.

​This Speech pertains to alimony which has been left by a will or by codicils, whether made in addition to a will or in intestacy. The same must be said even if it has been left as a gift in contemplation of death, or left by one to whom it was given in contemplation of death. But even if it has been left for the sake of fulfilling a condition, we shall still say the same. Clearly, concerning alimony which has not been given in contemplation of death, it will be permitted to compromise even without the authority of the praetor.

​Therefore, whether it has been left for each month, or for each day, or for each year, the Speech has application. But even if it has not been left in perpetuity, but up to a certain number of years, the same is true.

​If a lump sum has been bequeathed to someone, so that he may support himself from its interest and restore the money at the time of his death, the Speech will not cease to apply, although it does not appear to be left for each year.

​But even if a certain sum or thing is left to Titius in such a way that alimony is to be provided from it to Seius, it is more acceptable that Titius can compromise; for the alimony of Seius is not diminished by the compromise of Titius. And the same is true even if the alimony has been left to a legatee for this purpose through a trust.

​The Speech disapproves of that compromise which is made for the purpose of someone consuming ready money paid immediately. What then if someone compromises without the authority of the praetor so that, instead of what was left to him for each year, he should obtain it for each month? Or what if, instead of what was left to him for each month, he should obtain it for each day? What next if, instead of receiving it at the completion of the year, he should obtain it at the beginning of the year? And I think that such a compromise is valid, because the recipient of the alimony makes his condition better by such a compromise; for the Speech did not want alimony to be cut off by a compromise.

​Moreover, it makes no difference whether those to whom alimony has been left are freedmen or freeborn, sufficiently wealthy or less so.

​The Speech, therefore, wants inquiry to be made about these matters before the praetor: in the first place, concerning the cause of the compromise; secondly, concerning the amount; thirdly, concerning the person of those compromising.

​In the matter of the cause, this must be investigated: what is the cause for compromising? For without a cause, the praetor will hear no one wishing to compromise. Causes of almost this kind are usually alleged: if the heir has his domicile in one place and the recipient of the alimony in another; or if either of them intends to transfer his domicile; or if some cause of urgent need for ready money presses; or if alimony has been left to him by several persons and it is difficult for him to sue each one individually in detail; or if there was any other cause, as several are accustomed to happen, which would persuade the praetor to admit the compromise.

​The amount of the money also, which comes into the compromise, must be estimated, for instance, the quantity of the compromise. For the good faith of the compromise will also be estimated from the amount. Moreover, the amount must be judged according to the age and health of the person compromising; for it is obvious that a compromise is made on one basis with a child, on another with a youth, and on another with an old man; for it is well known that alimony ends with life.

​But consideration must also be had of the persons, that is, of what kind of life those are to whom the alimony has been left: whether they are of a frugal life, who could otherwise suffice for themselves, or of a worse sort, who depend on the alimony. In the person of him upon whom the alimony was charged, these things must be looked into: what are his means, of what purpose he is, of what reputation. For then it will appear whether he wishes to circumvent the one with whom he is compromising.

​He who compromises concerning alimony will not be deemed to have compromised either concerning habitation or concerning clothing, since the Divine Marcus specifically wished compromises concerning those matters also to be made in a particular way.