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Justinian I · The Digest of Justinian §11.7.4.pr

Consecration of Burial Sites before Inheritance Acceptance

Passage 1807 of 9271 · Latin

Summary

This section discusses the legal requirements and effects of making a burial site a religious place when an appointed heir or another person buries the deceased before the inheritance is accepted, including the exception when the burial occurs on bequeathed land.

[ULPIANUS libro uicensimo quinto ad edictum. ] §11.7.4.prScriptus heres prius quam hereditatem adeat patrem familias mortuum inferendo locum facit religiosum, nec quis putet hoc ipso pro herede eum gerere: finge enim adhuc eum deliberare de adeunda hereditate.
[ULPIAN in the twenty-fifth book on the Edict.] An appointed heir, before accepting the inheritance, makes a place religious by burying the deceased head of the household, and let no one think that by this very act he acts as heir; for imagine that he is still deliberating about accepting the inheritance.
ego etiam si non heres eum intulerit, sed quiuis alius herede uel cessante uel absente uel uerente ne pro herede gerere uideatur, tamen locum religiosum facere puto: plerumque enim defuncti ante sepeliuntur, quam quis heres eis existet.
I think that even if not the heir but anyone else buried him, because the heir was either inactive, absent, or afraid of seeming to act as heir, the place nevertheless becomes religious; for usually the deceased are buried before anyone becomes their heir.
sed tunc locus fit religiosus, cum defuncti fuit: naturaliter enim uidetur ad mortuum pertinere locus in quem infertur, praesertim si in eum locum inferatur, in quem ipse destinauit: usque adeo, ut etiamsi in legatum locum sit illatus ab herede, inlatione tamen testatoris fit religiosus, si modo in alium locum tam oportune inferri non potuit.
But the place becomes religious only when it belonged to the deceased; for naturally the place into which the deceased is brought seems to belong to him, especially if he is brought into the place which he himself designated. This is so to such an extent that even if he is brought by the heir into a place that has been bequeathed, the place nevertheless becomes religious by the burial of the testator, provided only that he could not be buried as conveniently in another place.

Notes

  1. §11.7.4.prprius quam hereditatem adeat — The subjunctive adeat in the subordinate clause introduced by the temporal conjunction prius quam indicates not just a simple temporal sequence, but that the acceptance of the inheritance has not yet occurred and is treated as an anticipated or pending action.
  2. §11.7.4.prpro herede eum gerere — An accusative-with-infinitive (AcI) construction serving as the object of the verb putet. The phrase pro herede gerere is a technical term in Roman law referring to 'acting as heir,' which entails performing acts that imply a tacit acceptance (aditio) of the inheritance.
  3. §11.7.4.prherede uel cessante uel absente uel uerente ne pro herede gerere uideatur — An ablative absolute construction with herede as the logical subject, modified by three present participles (cessante, absente, uerente) joined by uel. The last participle uerente (fearing) introduces a clause of fearing with ne and the subjunctive uideatur ('fearing lest he should seem to act as heir').
  4. §11.7.4.prinlatione tamen testatoris — The genitive testatoris functions as an objective genitive modifying the noun inlatione (literally, 'by the bringing in of the testator,' i.e., by burying the testator). It means that even if the place where the testator was buried had been bequeathed (legatum) to someone else, the site nevertheless becomes a religious place through the burial of the testator himself.

Cite this passage

Justinian I, The Digest of Justinian §11.7.4.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:11.7.4.pr

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