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Justinian I · The Digest of Justinian §10.2.52.pr-10.2.52.3

Division of Common Property and Arbiter Set-Off

Passage 1690 of 9271 · Latin

Summary

This section discusses the overlap between judgments for partition of inheritance and division of common property, the accounting obligation of a slave freed and appointed as heir, the set-off of mutual condemnations by an arbiter, and the requirement to value things as a whole during division.

[IDEM libro secundo ad Urseium Ferocem. ] §10.2.52.prMaeuius, qui nos heredes fecit, rem communem habuit cum Attio: si cum Attio communi diuidundo egissemus et nobis ea res adiudicata esset, uenturam eam in familiae erciscundae iudicio Proculus ait.
[THE SAME, from the second book on Urseius Ferox.] Maeuius, who made us heirs, had a property in common with Attius: Proculus says that if we had sued Attius for division of common property and that property had been adjudged to us, it would come into the judgment for partition of inheritance.
§10.2.52.1Seruus liber et heres esse iussus id quod ex rationibus quas patri familias gessisset penes se retineret iudicio familiae erciscundae coheredibus suis praestabit.
A slave ordered to be free and heir shall, in the judgment for partition of inheritance, make good to his co-heirs that which he retained in his possession from the accounts which he had managed for the father of the family.
§10.2.52.2Arbiter familiae erciscundae inter me et te sumptus quaedam mihi, quaedam tibi adiudicare uolebat, pro his rebus alterum alteri condemnandos esse intellegebat: quaesitum est, an possit pensatione ultro citroque condemnationis facta eum solum, cuius summa excederet, eius dumtaxat summae, quae ita excederet, damnare.
The arbiter for the partition of inheritance appointed between me and you wished to adjudge certain things to me and certain things to you, and understood that for these things one ought to be condemned to the other: the question was raised whether, having made a set-off of the condemnation on both sides, he could condemn only the one whose total exceeded, and only for that amount which so exceeded.
et placuit posse id arbitrum facere.
And it was approved that the arbiter could do this.
§10.2.52.3Cum familiae erciscundae uel communi diuidundo agitur, uniuersae res aestimari debent, non singularum rerum partes.
When action is brought for partition of inheritance or division of common property, the things as a whole must be valued, not the shares of individual things.

Notes

  1. §10.2.52.pruenturam — Future active infinitive with esse omitted (uenturam [esse]), serving as the predicate in an accusative-and-infinitive (AcI) construction. Its subject is eam (referring to rem communem). The entire construction depends on Proculus ait ('Proculus says that...').
  2. §10.2.52.2sumptus — Perfect passive participle (masculine nominative singular) of the verb sumere (in this context, meaning 'to appoint' or 'to choose' an arbiter), modifying the subject Arbiter ('the arbiter appointed/chosen'). It should not be confused with the fourth-declension noun sumptus (expenses, accusative plural).
  3. §10.2.52.2eius dumtaxat summae — Genitive case. The verb damnare (to condemn, sentence) can take the penalty or the amount to be paid in the genitive (or ablative) case; hence eius ... summae is governed by damnare ('to condemn [him] only for that amount').

Cite this passage

Justinian I, The Digest of Justinian §10.2.52.pr-10.2.52.3. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:10.2.52.pr-10.2.52.3

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