Humanitext Reader

Justinian I · The Digest of Justinian §24.1.56.pr

Invalidity of Directing a Mortis Causa Gift to One's Wife

Passage 3568 of 9271 · Latin

Summary

The passage analyzes the validity of directing a third-party mortis causa donation to one's own wife as an unconditional gift, concluding that it is invalid because it violates the prohibition of donations between spouses in both scenarios of the donor's recovery and death.

[SCAEUOLA libro tertio quaestionum. ] §24.1.56.prSi quod mihi mortis causa donare uellet, ego pure uxori donare uellem, non ualet quod uxori iubeo dari, quia illo conualescente condictione teneor, mortuo autem nihilo minus pauperior sum: non enim habeo quod habiturus essem.
[SCAEVOLA, in the third book of Questions.] If someone should wish to make a donation to me mortis causa, and I should wish to make an unconditional donation to my wife, that which I order to be given to my wife is not valid; because, if he recovers, I am bound by an action for recovery, whereas if he dies, I am nonetheless made poorer; for I do not have what I would have had.

Notes

  1. §24.1.56.prquod uxori iubeo dari — An accusative with infinitive construction (iubeo + passive infinitive dari), meaning 'that which I order to be given to my wife'. It refers to the husband's instruction (iussum) to the donor to deliver the property to his wife instead of himself. If this instruction were valid, it would effectively constitute a prohibited donation between spouses.
  2. §24.1.56.prillo conualescente — An ablative absolute construction consisting of a pronoun and a participle, meaning 'if he (the donor) recovers (from illness or danger of death)'. Since a donation mortis causa is revocable if the donor escapes the danger of death, the husband (the donee) would be bound by an action for recovery (condictio) upon the donor's recovery.
  3. §24.1.56.prquod habiturus essem — A periphrastic subjunctive construction consisting of the future active participle habiturus and the imperfect subjunctive essem. It functions as an apodosis of a contrary-to-fact conditional, meaning 'what I would have had (as owner, had the instruction to give to my wife not been deemed invalid)'. If the instruction were valid, the husband would lose the property he was supposed to acquire upon the donor's death, thereby becoming poorer, which violates the prohibition of interspousal donations.

Cite this passage

Justinian I, The Digest of Justinian §24.1.56.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:24.1.56.pr

Please note the AI-draft status of the translation and the date accessed.

Translation, notes and summary are AI-generated drafts, revised through reader feedback.