Humanitext Reader

Justinian I · The Digest of Justinian §26.2.4.pr

Differences in Parental Tutor Appointment and Inquiry

Passage 3750 of 9271 · Latin

Summary

The passage discusses the differences between a father and a mother in their capacity to appoint a tutor for a son, and the necessity of investigation for the appointed tutor, along with its exceptions.

[MODESTINUS libro septimo differentiarium. ] §26.2.4.prPater heredi instituto filio uel exheredato tutorem dare potest, mater autem non nisi instituto, quasi in rem potius quam in personam tutorem dare uideatur.
[MODESTINUS, from the seventh book on Differences.] A father can appoint a tutor for his son, whether the son is appointed heir or disinherited, but a mother can do so only for a son who is appointed heir, as she is deemed to appoint a tutor for the property rather than for the person.
sed et inquiri in eum, qui matris testamento datus est tutor, oportebit, cum a patre datus, quamuis minus iure datus sit, tamen sine inquisitione confirmatur, nisi si causa, propter quam datus uidebatur, in eo mutata sit, ueluti si ex amico inimicus uel ex diuite pauperior effectus sit.
But it will also be necessary to investigate him who has been appointed tutor by the mother's will, whereas one appointed by a father, even though appointed with less than full legal form, is nevertheless confirmed without investigation, unless the circumstance for which he seemed to be appointed has changed in him, as for example if he has become an enemy instead of a friend, or poorer instead of rich.

Notes

  1. §26.2.4.prnon nisi instituto — The phrase contains an ellipsis of `filio tutorem dare [potest]`, which must be supplied from the context of the preceding clause. It indicates that a mother can only appoint a tutor if the son is instituted as heir.
  2. §26.2.4.prquasi in rem potius quam in personam tutorem dare uideatur — The conjunction `quasi` is followed by the subjunctive `uideatur` to introduce a subjective or conceptual reason (rather than an objective fact), reflecting the legal fiction that since a mother lacks paternal power, she is deemed to protect the property rather than the person.
  3. §26.2.4.prcum a patre datus ... confirmatur — Here `cum` functions as an adversative or causal conjunction ("whereas" or "since"), contrasting the requirement of an investigation for a tutor appointed by a mother with the automatic confirmation without investigation for one appointed by a father.
  4. §26.2.4.prminus iure — Literally "less than by law." It is an idiomatic expression meaning "with less than full legal formality" or without fully meeting the strict requirements of civil law.

Cite this passage

Justinian I, The Digest of Justinian §26.2.4.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:26.2.4.pr

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