- Source
- Digesta Iustiniani Augusti. Mommsen, Theodor & Krueger, Paul, editors. Berlin: Weidmann, 1870.
- Translation
- AI-generated (gemini-3.5-flash) — machine translation; may contain errors
- Languages
- 日本語 · English · 简体中文 · 한국어
- CTS URN
- urn:cts:latinLit:phi2806.phi002.humanitext-lat1:7.5.8.pr
- Generated
- Humanitext Reader · reader.humanitext.ai · 2026-11-13
The jurist discusses a case where a quasi-usufruct of money is bequeathed and the testator orders two of the heirs to provide security as sureties on behalf of the legatee, explaining the validity of this legacy of security, the actions available, and the lack of a right of recourse among the heirs.
[PAPINIANUS libro septimo decimo quaestionum.]
[PAPINIANUS in the seventeenth book of Questions.]
Tribus heredibus institutis usum fructum quindecim milium Titio legauit et duos ex heredibus iussit pro legatario satisdare: placebat utile esse cautionis quoque legatum1 nec refragari senatus consultum, quia cautio non impediretur, et esse alterum legatum uelut certi, alterum incerti. usus fructus itaque nomine partem pecuniae petendam ab eo, qui satis accepit a coherede, incertique cum eodem agendum, si satis non dedisset. eum uero, qui satis praestitit ac propter moram coheredis satis non accepit,2 neque fructus nomine interim teneri propter senatus consultum neque actione incerti, quia coheredi satisdedit. illud etiam nobis placet legatarium cogendum promittere. finito autem usu fructu si coheredes ex causa fideiussoria convenirentur, eos mandati non acturos:3 non enim suscepisse mandatum, sed uoluntati paruisse: denique cautionis legato liberatos. de illo nec diu tractandum fuit secundum legatum, id est cautionis, non heredum uideri, sed eius, cui pecuniae usus fructus relictus est cuique testator prospicere uoluit et cuius interesse credidit fideiussores non suo periculo quaerere.
Three heirs having been appointed, the testator bequeathed the usufruct of fifteen thousand [sesterces] to Titius, and ordered two of the heirs to provide security on behalf of the legatee. It was agreed that the legacy of security is also valid, and that the Senate’s decree does not oppose it, because the security is not prevented, and that one legacy is, as it were, of a certain thing, the other of an uncertain thing. Therefore, under the name of usufruct, a portion of the money must be claimed from him who has received security from his co-heir, and an action for an uncertain thing must be brought against the same person if he has not given security. But he who has provided security, and yet, because of the delay of his co-heir, has not received security, is neither liable in the meantime under the name of usufruct because of the Senate’s decree, nor by the action for an uncertain thing, because he has given security to his co-heir. It is also our opinion that the legatee must be compelled to make a promise. Moreover, when the usufruct has ended, if the co-heirs should be sued on the ground of their suretyship, they will not bring the action of mandate; for they did not undertake a mandate, but complied with the will [of the testator]; in short, they are released from the legacy of security. There was no need for a long discussion on this point: that the second legacy—that is, of the security—is considered to belong not to the heirs, but to him to whom the usufruct of the money was left, for whom the testator wished to provide, and in whose interest he believed it to be not to seek sureties at his own risk.
- 7.5.8.prcautionis quoque legatum
The "legacy of security" (cautionis legatum) refers to the testator's command that the heirs themselves provide the security on behalf of the legatee, which the legatee would otherwise have to give under the Senate's decree for quasi-usufruct. This is held to be valid as a second legacy (of an uncertain thing) in favor of the legatee.
- 7.5.8.prqui satis praestitit ac propter moram coheredis satis non accepit
The antecedent is "eum", the subject accusative of "teneri", referring to one of the heirs obligated to pay. Though he has provided security to his co-heir (satis praestitit), due to the delay of another co-heir he has not himself received security (satis non accepit) from the legatee's side, and is thus entitled to withhold the usufruct money under the Senate's decree.
- 7.5.8.preos mandati non acturos
If the heirs acting as sureties are sued and perform the obligation, they cannot bring the action of mandate (actio mandati) against the legatee (the principal debtor) for recourse. This is because they did not act on a mandate (mandatum) from the legatee, but merely complied with the testator's will (uoluntas).