Justinian I · The Digest of Justinian §11.1.12.pr-11.1.12.1

Interrogation of Abstaining Sons and Exceptions on Answers

Passage 1758 of 9271 · Latin

Summary

Describes the difference in treatment when a son who has abstained from inheritance answers that he is the heir versus keeping silent when interrogated in court, and the exceptions available to those sued on their own answers.

[PAULUS libro septimo decimo ad edictum. ] §11.1.12.prSi filius, qui abstinuit se paterna hereditate, in iure interrogatus responderit se heredem esse, tenebitur: nam ita respondendo pro herede gessisse uidetur.

[PAULUS, from the seventeenth book on the Edict.] If a son, who has abstained from his father's inheritance, when interrogated in court, answers that he is the heir, he shall be held liable; for by so answering he is deemed to have acted as heir.

sin autem filius, qui se abstinuit, interrogatus tacuerit, succurrendum est ei: quia hunc qui abstinuit praetor non habet heredis loco.

But if the son, who has abstained, keeps silent when interrogated, relief must be granted to him; because the praetor does not hold this person who has abstained in the position of an heir.

§11.1.12.1Exceptionibus, quae institutis in iudicio contra reos actionibus opponuntur, etiam is uti potest, qui ex sua responsione conuenitur, ueluti pacti conuenti, rei iudicatae et ceteris.

The exceptions which are opposed to actions brought in court against defendants, such as that of an agreed pact, of a res judicata, and others, can also be used by him who is sued on his own answer.

Notes

11.1.12.prabstinuit se paterna hereditate — A son-in-power (filius familias) automatically becomes an heir (suus et necessarius heres) upon his father's death, but if the estate is insolvent, he can exercise the "privilege of abstaining" (beneficium abstinendi) granted by the praetor to withdraw (abstinere se) from the inheritance.
11.1.12.prpro herede gessisse — Answering that one is the heir during an interrogation in court, despite having previously abstained, is construed as voluntarily "acting as heir" (pro herede gerere), thereby losing the benefit of abstaining and becoming liable for the hereditary debts.
11.1.12.1Exceptionibus — Exceptionibus is in the ablative plural, serving as the object of the main verb uti (which governs the ablative). The antecedent is is (the antecedent of the relative pronoun qui), making the core structure of the sentence "is etiam exceptionibus uti potest" (that person too can use exceptions).
11.1.12.1quae institutis in iudicio contra reos actionibus opponuntur — The antecedent of the relative pronoun quae (nominative feminine plural) is exceptionibus. institutis ... actionibus (actions brought) is in the dative plural, depending on the verb opponuntur (are opposed to).

Cite this passage

Justinian I, The Digest of Justinian §11.1.12.pr-11.1.12.1. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:11.1.12.pr-11.1.12.1

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