Humanitext Reader

Justinian I · The Digest of Justinian §28.3.15.pr

Birth of a Son to a Captive and Rupture of Testament

Passage 4170 of 9271 · Latin

Summary

Discusses the testament of a man who became a captive of the enemy leaving a pregnant wife, examining the effect of a posthumously born son on the validity of the testament and the status of the appointed heirs.

[IAUOLENUS libro quarto epistularum. ] §28.3.15.prQui uxorem praegnatem habebat, in hostium potestatem peruenit: quaero, filio nato quo tempore testamentum in ciuitate factum rumpatur? et si filius ante moriatur quam pater, an scripti heredes hereditatem habituri sint? respondi: non puto dubium esse, quin per legem Corneliam, quae de confirmandis eorum testamentis, qui in hostium potestate decessissent, lata est, nato filio continuo eius testamentum, qui in hostium potestate sit, rumpatur: sequitur ergo, ut ex eo testamento hereditas ad neminem perueniat.
[JAVOLENUS, Letters, Book 4.] A man who had a pregnant wife fell into the power of the enemy. I ask: if a son is born, at what moment is the testament made in the state revoked? And if the son dies before the father, will the appointed heirs possess the inheritance? I answered: I think there is no doubt that, by the Cornelian law which was passed concerning the confirmation of the testaments of those who had died in the power of the enemy, as soon as the son is born, the testament of him who is in the power of the enemy is immediately revoked; it follows, therefore, that from that testament the inheritance passes to no one.

Notes

  1. §28.3.15.prin ciuitate — Meaning 'in the state' or 'within the citizen community'. It indicates that the testament was legally made before the testator fell into the hands of the enemy, while he still possessed full legal capacity as a Roman citizen.
  2. §28.3.15.prnon puto dubium esse, quin ... rumpatur — A construction of negative doubt, 'non dubium est quin' + subjunctive (here 'rumpatur'), embedded under 'puto'. The core structure of the sentence is 'I think there is no doubt that the testament... is revoked (upon the birth of the son)', into which a relative clause about the Lex Cornelia and the ablative absolute of condition ('nato filio') are inserted, creating a complex sentence structure.
  3. §28.3.15.prper legem Corneliam — Refers to the Lex Cornelia (c. 81 BC). It introduced a legal fiction (fictio legis Corneliae) that a Roman citizen who died as a captive of the enemy (which legally reduced him to a slave and invalidated his testament) was deemed to have died at the moment of capture, thus preserving the validity of his testament. Here, it is ruled that even under this fiction, the subsequent birth of a 'suus heres' (immediate heir) still revokes the testament as it normally would.

Cite this passage

Justinian I, The Digest of Justinian §28.3.15.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:28.3.15.pr

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