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Justinian I · The Digest of Justinian §28.5.31.pr-28.5.31.1

Institution of Another's Slave and Slave of an Inheritance

Passage 4210 of 9271 · Latin

Summary

Discusses that slaves can be instituted as heirs just like free children, and that a slave belonging to an inheritance before its acceptance can also be designated as an heir based on the legal fiction that the inheritance occupies the place of the deceased.

[GAIUS libro septimo decimo ad edictum prouinciale. ] §28.5.31.prNon minus seruos quam liberos heredes instituere possumus, si modo eorum scilicet serui sint, quos ipsos heredes instituere possumus, cum testamenti factio cum seruis ex persona dominorum introducta est.
[GAIUS libro septimo decimo ad edictum prouinciale.] We can institute slaves as heirs no less than free children, provided, of course, that they are the slaves of those whom we can ourselves institute as heirs, since the capacity to make a will with slaves has been introduced on the basis of the person of their masters.
H §28.5.31.1ereditarium seruum ante aditam hereditatem ideo placuit heredem institui posse, quia creditum est hereditatem dominam esse defuncti locum optinere.
H ereditary slaves, before the inheritance is accepted, can be instituted as heirs for this reason, because it is believed that the inheritance is the mistress and occupies the place of the deceased.

Notes

  1. 28.5.31.prtestamenti factio cum seruis — "The capacity to make a will with slaves," referring to the "passive capacity" of a slave to be instituted as an heir or legatee in someone else's will. Since a slave has no legal capacity of their own, this capacity is derived from the person of their master (ex persona dominorum).
  2. 28.5.31.1ante aditam hereditatem — The preposition ante followed by the perfect passive participle aditam (agreeing with the noun hereditatem) expresses a verbal action: "before the inheritance is accepted" (a construction equivalent to the ab urbe condita construction).
  3. 28.5.31.1hereditatem dominam esse defuncti locum optinere — An accusative with infinitive (AcI) construction depending on creditum est. hereditatem is the subject accusative, with two parallel infinitives, esse and optinere. dominam is the predicate accusative agreeing with the feminine subject hereditatem, representing the legal fiction in Roman law that the inheritance itself acts as the "mistress" (domina) and maintains the legal position of the deceased before acceptance.

Cite this passage

Justinian I, The Digest of Justinian §28.5.31.pr-28.5.31.1. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:28.5.31.pr-28.5.31.1

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