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Justinian I · The Digest of Justinian §22.3.3.pr

Burden of Proof on Change of Intent in Tacit Trusts

Passage 3221 of 9271 · Latin

Summary

This text argues that when a tacit trust is at issue with an heir designated in both successive testaments, the burden of proving a change in the testator's intention lies on the defendant who is sued for non-performance.

[PAPINIANUS libro nono responsorum. ] §22.3.3.prCum tacitum fideicommissum ab eo datur, qui tam in primo quam in secundo testamento pro eadem parte uel postea pro maiore heres scribitur, probatio mutatae uoluntatis ei debet incumbere qui conuenitur, cum secreti suscepti ratio plerumque dominis rerum persuadeat eos ita heredes scribere, quorum fidem elegerunt.
[PAPINIANUS, in the ninth book of Responses.] When a tacit fideicommissum is given by one who is written down as heir for the same share both in the first and in the second testament, or afterwards for a larger share, the proof of a change of intention ought to lie upon him who is sued; since the nature of the secret undertaken generally persuades the owners of property to write down as heirs in this manner those whose trust they have chosen.

Notes

  1. §22.3.3.prsecreti suscepti — The noun "secretum" (secret) here refers to the "tacitum fideicommissum" (tacit trust) mentioned before, and "suscepti" (genitive singular neuter of the perfect passive participle of "suscipere", to undertake) means the undertaking of this trust.
  2. §22.3.3.prpersuadeat eos ita heredes scribere — The verb "persuadeat" (present subjunctive of "persuadere", to persuade) governs the dative "dominis rerum" and introduces the accusative-with-infinitive clause "eos... scribere" (to write them down as heirs), where "eos" is the accusative direct object and "heredes" is the predicate accusative.

Cite this passage

Justinian I, The Digest of Justinian §22.3.3.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:22.3.3.pr

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