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Justinian I · The Digest of Justinian §10.2.30.pr

Partition of a Single Land and Indivisibility of Religious Sites

Passage 1668 of 9271 · Latin

Summary

In response to a query about whether an arbiter for dividing an inheritance can partition a shared land while exempting other hereditary objects, Modestinus answers in the affirmative. He notes, however, that religious places within the land are excluded from the lawsuit and the right to them belongs to each heir in full.

[MODESTINUS libro sexto responsorum. ] §10.2.30.prFundus mihi communis est pupillae coheredi: in eo fundo reliquiae sunt conditae, quibus religio ab utriusque patribus debebatur, nam parentes quoque eiusdem pupillae ibi sepulti sunt: sed tutores distrahere fundum uolunt: ego non consentio, sed portionem meam possidere malo, cum uniuersitatem emere non possim et uelim pro meo arbitrio exsequi ius religionis.
[MODESTINUS libro sexto responsorum.] A tract of land is held in common between me and a female ward who is my co-heir. In that land, remains are buried to which a religious duty was owed by the fathers of both of us, for the parents of the same ward are also buried there. But her tutors wish to sell the land; I do not consent, but prefer to possess my own share, since I cannot buy the whole and wish to perform the religious right according to my own judgment.
quaero, an recte arbitrum communi diuidundo ad hunc fundum partiendum petam an etiam is arbiter, qui familiae erciscundae datur, isdem partibus fungi possit, ut hanc possessionem exemptis ceteris corporibus hereditariis pro iure cuique nobis partiatur.
I ask whether I may correctly petition for an arbiter for the division of common property to divide this land, or whether the arbiter who is given for the division of an inheritance can perform the same office, so that, other hereditary objects being excepted, he may divide this possession between us, to each according to his right.
Herennius Modestinus respondit nihil proponi, cur familiae erciscundae iudicio addictus arbiter officium suum etiam in eius fundi de quo agitur diuisionem interponere non possit: sed religiosa loca in iudicium non deduci eorumque ius singulis heredibus in solidum competere.
Herennius Modestinus replied that nothing was put forward to show why the arbiter assigned to the action for the division of an inheritance cannot interpose his office also in the division of the land in question; but that religious places are not brought into court, and the right to them belongs to each of the heirs in full.

Notes

  1. §10.2.30.prpupillae coheredi — Dative case dependent on the adjective `communis` (common). Placed in apposition with `mihi`, it indicates the person (the female ward who is the co-heir) with whom the land is held in common.
  2. §10.2.30.prisdem partibus fungi possit — The verb `fungi` (to perform, discharge) governs the ablative case, hence `isdem partibus` (the same office/duties) is in the ablative plural. Here `partes` means "role, office, duties" rather than "parts."
  3. §10.2.30.prin solidum — Meaning "in full" or "indivisibly." Since religious places (such as burial sites) are legally indivisible (res religiosa), this indicates that the heirs do not divide the right by shares, but rather each heir holds the right to the whole in its entirety (without excluding the others).

Cite this passage

Justinian I, The Digest of Justinian §10.2.30.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:10.2.30.pr

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