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Justinian I · The Digest of Justinian §28.1.12.pr

Fiction of Captives' Wills and Inheritance Under the Cornelian Law

Passage 4102 of 9271 · Latin

Summary

The passage explains the legal fiction under the Cornelian Law regarding the testaments and inheritances of prisoners of war, and how their slaves and sons are bound to the inheritance against their will.

[IULIANUS libro quadragesimo secundo digestorum. ] §28.1.12.prLege Cornelia testamenta eorum, qui in hostium potestate decesserint, perinde confirmantur, ac si hi qui ea fecissent in hostium potestatem non peruenissent, et hereditas ex his eodem modo ad unumquemque pertinet.
[IULIANUS, in the forty-second book of the Digests.] By the Cornelian Law, the testaments of those who have died in the power of the enemy are confirmed in the same manner as if those who had made them had not come into the power of the enemy, and the inheritance from them belongs to each person in the same way.
quare seruus heres scriptus ab eo, qui in hostium potestate decesserit, liber et heres erit seu uelit seu nolit, licet minus proprie necessarius heres dicatur: nam et filius eius, qui in hostium potestate decessit, inuitus hereditati obligatur, quamuis suus heres dici non possit, qui in potestate morientis non fuit.
Therefore, a slave designated as heir by one who has died in the power of the enemy will be free and heir whether he wills it or not, although he may be called a necessary heir less properly; for the son of him also who died in the power of the enemy is bound to the inheritance against his will, although he who was not in the power of the dying person cannot be called a self-successor.

Notes

  1. §28.1.12.prperinde confirmantur, ac si — This is a correlative expression ("just as if... so too") representing a legal fiction, accompanied by the subjunctive (here, the pluperfect 'peruenissent'). It syntactically reflects the legal fiction introduced by the Cornelian Law (fictio legis Corneliae), which deemed a Roman citizen who died in enemy captivity to have died as a citizen at the moment just before being captured.
  2. §28.1.12.prqui in potestate morientis non fuit — The antecedent of the relative pronoun 'qui' is 'filius' (son), the subject of the main clause. This relative clause is placed after the concessive clause 'quamuis suus heres dici non possit' to explain the reason why the subject does not meet the definition of a 'suus heres' ("he who was not in the power of the dying person"). It reflects the legal doctrine that because a father captured by the enemy temporarily lost his citizenship and paternal power, the son was legally not under his power at the time of death.

Cite this passage

Justinian I, The Digest of Justinian §28.1.12.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:28.1.12.pr

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