Justinian I · The Digest of Justinian §12.6.61.pr

Payment before abstaining from inheritance and restitution

Passage 2037 of 9271 · Latin

Summary

Scaevola discusses whether creditors who were paid from paternal assets before the pupil abstained from the inheritance must restore the excess, concluding that they are liable to other creditors but not to the tutor or pupil.

[SCAEUOLA libro quinto responsorum. ] §12.6.61.prTutores pupilli quibusdam creditoribus patris ex patrimonio paterno soluerunt, sed postea non sufficientibus bonis pupillum abstinuerunt: quaeritur, an quod amplius creditoribus per tutores pupilli solutum est uel totum quod acceperunt restituere debeant.

[SCAEUOLA, in the fifth book of Opinions.] The tutors of a pupil paid certain creditors of the father out of the paternal estate, but afterwards, as the assets were insufficient, they withdrew the pupil from the inheritance. It is asked whether they ought to restore either the excess that was paid to the creditors through the tutors of the pupil, or the whole of what they received.

respondi, si nihil dolo factum esset, tutori quidem uel pupillo non deberi, creditoribus autem aliis in id, quod amplius sui debiti solutum est, teneri.

I answered that, if nothing was done with malicious intent, no duty of restoration is owed to the tutor or to the pupil, but they are liable to the other creditors for that which was paid in excess of their own debt.

Notes

12.6.61.prnon sufficientibus bonis — An ablative absolute construction comprising the noun 'bonis' and the participle 'sufficientibus', indicating cause or circumstance: "as the assets were insufficient."
12.6.61.prpupillum abstinuerunt — The transitive verb 'abstinere' is used here as a legal term meaning "withdrew the pupil from the inheritance." It refers to the tutors exercising the privilege of abstention (beneficium abstinendi) on behalf of the pupil to avoid liability for an insolvent estate.
12.6.61.prnon deberi — Part of an accusative with infinitive construction in indirect speech. In this context, it means "no duty (of restoration) is owed," where 'tutori... uel pupillo' are datives representing the parties to whom the duty would be owed. Thus, "nothing is owed to the tutor or to the pupil," meaning they cannot claim recovery.
12.6.61.prsui debiti — A genitive of comparison (or genitive of relation) depending on 'amplius', which is used substantively: "more than their own debt" (i.e., the amount paid in excess of what was actually owed to them).

Cite this passage

Justinian I, The Digest of Justinian §12.6.61.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:12.6.61.pr

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