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Justinian I · The Digest of Justinian §26.3.8.pr

Inquiry into the Continuance of Paternal Will for Tutors

Passage 3788 of 9271 · Latin

Summary

The author explains that in confirming an informally appointed tutor, the praetor must investigate whether the father's will remained unchanged, which depends on the time elapsed since the appointment, potential changes in the tutor's wealth or character, and his relationship with the father.

[TRYPHONINUS libro quarto decimo disputationum. ] §26.3.8.prIn confirmando tutore hoc praetor inquirere debet, an durauerit patris uoluntas: quod in facili est, si proximo mortis tempore tutores non iure uel curatores scripserit pater.
[TRYPHONINUS, from the fourteenth book of Disputations.] In confirming a tutor, the praetor must inquire into this, whether the will of the father has lasted: which is easy, if the father has written down tutors not by law or curators at a time close to his death.
nam si ante annos, ut spatio medio potuerit facultatium dati non iure tutoris a patre fieri deminutio, uel morum ante celata uel ignorata emersit improbitas, aut inimicitiae cum patre exarserunt,
For if it was years before, so that in the intervening space of time a diminution of the assets of the tutor appointed by the father not by law could have occurred, or the wickedness of his character, previously concealed or unknown, has emerged, or hostilities with the father have flared up, [the survival of his will is not easily established.]

Notes

  1. §26.3.8.prnam si ante annos — The conditional clause introduced by `nam si` lacks an explicit apodosis (consequent clause). In contrast with the previous statement that confirmation is easy if the appointment was close to death (`quod in facili est`), the clause implies that if the appointment was made years before, various changes in circumstances (such as a decrease in assets, character issues, or hostility) might have occurred, making the inquiry into the survival of the father's will difficult or requiring further examination.
  2. §26.3.8.prdati non iure tutoris — The perfect passive participle `dati` in the genitive singular agrees with `tutoris`, meaning 'the appointed tutor.' The adverbial phrase `non iure` ('not by law', i.e., lacking formal legal requirements) modifies `dati`. The entire phrase is in the genitive, modifying `facultatium` (assets), which in turn depends on `deminutio` (decrease).

Cite this passage

Justinian I, The Digest of Justinian §26.3.8.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:26.3.8.pr

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