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Justinian I · The Digest of Justinian §19.5.10.pr

Action on the Case for Usufruct Converted into Money

Passage 2897 of 9271 · Latin

Summary

The text discusses whether an action on the case (actio in factum) should be granted to recover money from a deceased legatee's heir when her bequeathed usufruct was converted into a quasi-usufruct of money but the return-security stipulation was omitted by mistake.

[IAUOLENUS libro tertio decimo epistularum. ] §19.5.10.prPartis tertiae usum fructum legauit: heredis bona ab eius creditoribus distracta sunt et pecuniam, quae ex aestimatione partis tertiae fiebat, mulier accepit fruendi causa et per ignorantiam stipulatio praetermissa est.
[JAVOLENUS in the thirteenth book of Epistles.] A person bequeathed the usufruct of a third part. The property of the heir was sold by his creditors, and the woman received for the purpose of enjoyment the money which arose from the valuation of the third part, and through ignorance the stipulation was omitted.
quaero, an ab herede mulieris pecunia, quae fruendi causa data est, repeti possit, et qua actione.
I ask whether the money which was given for the purpose of enjoyment can be recovered from the heir of the woman, and by what action.
respondi in factum actionem dari debere.
I answered that an action on the case (actio in factum) ought to be granted.

Notes

  1. §19.5.10.prstipulatio — The 'stipulation' (stipulatio) here refers to the security (cautio usufructuaria) normally entered into in the case of a quasi-usufruct of money to guarantee the return of an equivalent sum upon its termination. Since it was 'omitted through ignorance' (per ignorantiam praetermissa est), a standard action arising from a stipulation (actio ex stipulatu) is unavailable, necessitating the recourse to an actio in factum.
  2. §19.5.10.prpecuniam, quae ex aestimatione partis tertiae fiebat — The imperfect verb fiebat indicates the money that 'arose from' or 'came to be equivalent to' the valuation of the third part as a result of the sale of the estate. It describes the process where a legacy originally consisting of a real usufruct was converted, due to the creditors' sale of the property (distractio bonorum), into the receipt of a sum of money representing its value, thus legally constituting a quasi-usufruct.

Cite this passage

Justinian I, The Digest of Justinian §19.5.10.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:19.5.10.pr

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