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Justinian I · The Digest of Justinian §26.3.7.pr-26.3.7.1

Tutors for Natural Sons and Criteria for Inquiry

Passage 3787 of 9271 · Latin

Summary

Explains the requirements for appointing a tutor for a natural son and the four criteria to determine whether a tutor has been rightly appointed after an inquiry.

[HERMOGENIANUS libro secundo iuris epitomarum. ] §26.3.7.prNaturali filio, cui nihil relictum est, tutor frustra datur a patre nec sine inquisitione confirmatur.
[HERMOGENIANUS, from the second book of the Epitome of Law.] A tutor is appointed in vain by a father for a natural son to whom nothing has been left, nor is he confirmed without an inquiry.
§26.3.7.1Si quaeratur, an ex inquisitione recte datus sit tutor, quattuor haec consideranda sunt: an hic dederit qui dare potuit, et ille acceperit cui fuerat dandus, et is datur cuius dandi facultas erat, et pro tribunali decretum interpositum.
If it is questioned whether a tutor has been rightly appointed after an inquiry, these four things must be considered: whether he who had the power to appoint did appoint, whether he received who ought to have been given, whether he is appointed who had the capacity to be appointed, and whether a decree was interposed from the tribunal.

Notes

  1. §26.3.7.prNaturali filio — Refers to a child born out of wedlock (naturalis filius). Under Roman law, a father generally does not hold paternal power over a natural child, rendering the testamentary appointment of a tutor inherently invalid (frustra). However, an exception could be made if property was left to them, which makes the subsequent condition 'to whom nothing has been left' (cui nihil relictum est) critical.
  2. §26.3.7.1is datur cuius dandi facultas erat — The third of the four points for consideration. The demonstrative pronoun 'is' refers to the appointed tutor. 'cuius' is the genitive relative pronoun, and 'dandi' is a gerund (or gerundive); thus, 'cuius dandi facultas erat' means 'there was the capacity or qualification to appoint him'. This refers to the legal capacity of the appointee (the tutor) to assume the office, such as not having grounds for exemption.

Cite this passage

Justinian I, The Digest of Justinian §26.3.7.pr-26.3.7.1. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:26.3.7.pr-26.3.7.1

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