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Justinian I · The Digest of Justinian §22.3.21.pr

Burden of Proof on Legatee Regarding Bequests

Passage 3239 of 9271 · Latin

Summary

Marcianus argues that in a lawsuit regarding the bequest of someone else's or pledged property, the burden of proving that the deceased knew this fact always lies on the plaintiff (the legatee), not on the heir.

[MARCIANUS libro sexto institutionum. ] §22.3.21.prUerius esse existimo ipsum qui agit, id est legatarium, probare oportere scisse alienam rem uel obligatam legare defunctum, non heredem probare oportere ignorasse alienam uel obligatam, quia semper necessitas probandi incumbit illi qui agit.
[MARCIANUS, in the sixth book of the Institutions.] I think it is more correct that the person who brings the action, that is, the legatee, must prove that the deceased knew he was bequeathing someone else's property or property that was pledged, and not that the heir must prove that [the deceased] was ignorant that it was someone else's or pledged, because the burden of proof always lies on the person who brings the action.

Notes

  1. §22.3.21.prscisse alienam rem uel obligatam legare defunctum — An accusative-with-infinitive clause serving as the object of 'probare' (to prove). 'defunctum' (the deceased) is the subject accusative of 'scisse' (to have known), while the infinitive 'legare' (to bequeath) functions as the object clause of 'scisse'. The entire phrase means 'that the deceased knew [he] was bequeathing someone else's or pledged property'.
  2. §22.3.21.prignorasse — A perfect infinitive whose implied subject is not the preceding 'heredem' (the heir) but 'defunctum' (the deceased) carried over from the previous clause. Legally, the legatee who claims the validity of the bequest of another's property must prove that the deceased knew ('scisse') of it; the heir does not bear the burden of proving that the deceased was ignorant ('ignorasse') of it.

Cite this passage

Justinian I, The Digest of Justinian §22.3.21.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:22.3.21.pr

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