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Justinian I · The Digest of Justinian §14.5.2.pr-14.5.2.1

Actions Granted Against Independent Persons to Extent of Means

Passage 2233 of 9271 · Latin

Summary

Ulpian explains the praetorian edict stating that when a person who contracted while in power later becomes independent through emancipation, disinheritance, or abstention from inheritance, the praetor will grant an action against them, after a preliminary inquiry, limited to the extent of their ability to pay.

[ULPIANUS libro uicensimo nono ad edictum. ] §14.5.2.prAit praetor: 'In eum, qui emancipatus aut exheredatus erit quiue abstinuit se hereditate eius cuius in potestate cum moritur fuerit, eius rei nomine, quae cum eo contracta erit, cum is in potestate esset, siue sua uoluntate siue iussu eius in cuius potestate erit contraxerit, siue in peculium ipsius siue in patrimonium eius cuius in potestate fuerit ea res redacta fuerit, actionem causa cognita dabo in quod facere potest. ' §14.5.2.1Sed et si citra emancipationem sui iuris factus sit uel in adoptionem datus, deinde pater naturalis decesserit, item si quis ex minima parte sit institutus, aequissimum est causa cognita etiam in hunc dari actionem in id quod facere potest.
[Ulpian, on the Edict, Book 29] The praetor says: 'Against him who has been emancipated or disinherited, or who has abstained from the inheritance of the person in whose power he was when that person died, on account of that transaction which was contracted with him when he was in another's power—whether he contracted of his own free will or by the order of the person in whose power he was, or whether that property was turned to his own peculium or to the patrimony of the person in whose power he was—I will grant an action, after investigation of the case, to the extent of his ability to pay.' But even if, without emancipation, he has become sui iuris or has been given in adoption, and subsequently his natural father has died, and likewise if anyone has been instituted heir for a minimal share, it is most equitable that, after investigation of the case, an action should be granted also against this person to the extent of his ability to pay.

Notes

  1. §14.5.2.prabstinuit se hereditate eius cuius in potestate cum moritur fuerit — The phrase 'abstinere se' takes the ablative ('hereditate') meaning 'to abstain from'. 'eius' refers to the deceased paterfamilias, which is modified by the relative clause 'cuius in potestate... fuerit'. The subject of 'moritur' is the deceased (eius), while the subject of 'fuerit' is the contractor (the subject of the main clause).
  2. §14.5.2.prin quod facere potest — The preposition 'in' with the accusative 'quod' (or 'id quod') indicates a limitation or extent: 'to the extent of what he can do / pay'. In legal terminology, this represents the 'beneficium competentiae' (benefit of competence), where 'facere' refers specifically to the ability to perform or pay a debt.

Cite this passage

Justinian I, The Digest of Justinian §14.5.2.pr-14.5.2.1. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:14.5.2.pr-14.5.2.1

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