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Justinian I · The Digest of Justinian §26.3.10.pr

Pupil Interest and Revocation of Paternal Will in Appointment

Passage 3790 of 9271 · Latin

Summary

Tryphoninus discusses how the praetor must prioritize the interest of pupils over the literal text of a will, and explains that the praetor will not follow the father's initial wish if the father himself subsequently changed his mind.

[TRYPHONINUS libro quarto decimo disputationum. ] §26.3.10.prutilitatem pupillorum praetor sequitur, non scripturam testamenti uel codicillorum.
[TRYPHONINUS, from the fourteenth book of Disputations.] The praetor follows the interest of the pupils, not the written text of a will or of codicils.
nam patris uoluntatem praetor ita accipere debet, si non fuit ignarus scilicet eorum, quae ipsa praetor de tutore comperta habet.
For the praetor ought to accept the father's wish in such a way only if the father was not, of course, ignorant of those facts which the praetor himself has found out about the tutor.
quid denique si postea de eo, quem pater testamento codicillisue non iure dedit, scripsit tutorem esse nolle? nempe non sequitur primam uoluntatem praetor, a qua pater discessit.
What, then, if later, concerning the person whom the father designated in his will or codicils not in accordance with the law, the father wrote that he did not wish him to be the tutor? Surely, the praetor does not follow the first wish, from which the father has departed.

Notes

  1. §26.3.10.prita... si... — The correlative construction of the adverb ita and the conditional clause with si expresses a restrictive condition, meaning "only if" or "in such a way only if."
  2. §26.3.10.prcomperta habet — The periphrastic combination of habeo with the perfect participle (here comperta, neuter plural accusative agreeing with the relative pronoun quae) denotes a completed action whose state continues ("has found out" or "holds as discovered"), prefiguring the auxiliary perfect in Romance languages.
  3. §26.3.10.prscripsit tutorem esse nolle — The subject of scripsit is pater (the father) from the context, and the subject of the infinitive nolle is also the father (with the accusative pronoun se omitted). Thus, it means "he (the father) wrote that he did not wish [him] to be the tutor."

Cite this passage

Justinian I, The Digest of Justinian §26.3.10.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:26.3.10.pr

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