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Justinian I · The Digest of Justinian §28.5.38.pr-28.5.38.5

Conditional Manumission, Heirship, and Alienation of Slaves

Passage 4217 of 9271 · Latin

Summary

Julianus discusses the conditions for manumission and the institution of heirs regarding slaves in testaments and codicils, along with the right of entering upon an inheritance and the duty of restitution after the sale or alienation of the slave.

[IDEM libro trigesimo digestorum. ] §28.5.38.prQui filio impuberi exheredato Pamphilum legat, eundem post mortem filii ex parte heredem instituere eodem modo potest, quo is, qui seruum Sempronio legatum, eundem post mortem Sempronii ex parte heredem instituit.
[THE SAME, in the thirtieth book of his Digest.] He who bequeaths Pamphilus to a disinherited impuberal son can, after the death of the son, appoint the same slave as heir to a part, in the same manner as he who appoints a slave bequeathed to Sempronius as heir to a part after the death of Sempronius.
§28.5.38.1Seruus testamento heres pure scriptus, liber autem iussus esse, si intra kalendas Decembres decem dedisset, si codicillis pure libertatem acceperit, intra kalendas quidem neque liber neque heres erit, nisi decem dederit: si intra kalendas non dederit, liber ex codicillis erit.
A slave appointed heir unconditionally in a testament, but ordered to be free if he should give ten before the Kalends of December, if he has received his freedom unconditionally in codicils, will indeed be neither free nor heir before the Kalends, unless he gives the ten; if he does not give them before the Kalends, he will be free under the codicils.
§28.5.38.2Si quis seruum suum liberum sub condicione, heredem pure scripsisset eumque uendidisset pendente condicione, iussu emptoris seruus adire hereditatem potest, quia et constitit institutio et est qui ius imperandi habet.
If anyone had appointed his slave free under a condition and heir unconditionally, and had sold him while the condition was pending, the slave can enter upon the inheritance by order of the purchaser, because the appointment was validly established and there is someone who has the right to command.
§28.5.38.3Quod si post defectam condicionem alienatus fuisset, non potest iussu emptoris hereditatem adire, quia eo tempore ad eum peruenisset, quo iam extincta institutio inutilis fuerat.
But if he had been alienated after the failure of the condition, he cannot enter upon the inheritance by order of the purchaser, because he would have come to him at a time when the appointment, having already been extinguished, was of no effect.
§28.5.38.4Igitur cum seruus sub condicione liber esse iubetur et legatum pure accepit, si pendente condicione manumissus uel alienatus fuerat, legatum habebit aut domino adquiret, quamuis mortis tempore condicio libertatis extincta fuerit: si uero post defectum condicionis manumissus aut alienatus fuerit, legatum ad irritum recidit.
Therefore, when a slave is ordered to be free under a condition and has received a legacy unconditionally, if he had been manumitted or alienated while the condition was pending, he will have the legacy or acquire it for his master, even though at the time of death the condition of freedom was extinguished; but if he was manumitted or alienated after the failure of the condition, the legacy falls to nothing.
§28.5.38.5Cum uenditor seruum ante traditionem ab emptore pro parte heredem scriptum adire iubet, restituere coheredi serui necesse habet, quia lucrum facere eius serui iure quem uendidit non debet.
When a seller, before delivery, orders a slave who has been appointed heir to a part by the purchaser to enter upon the inheritance, he is bound to restore it to the co-heir of the slave, because he ought not to make a profit by right of that slave whom he has sold.
plane non totum quod adquisierit restituet, sed pro ea dumtaxat parte, qua seruus coheredem habuerit,
Clearly he will not restore the whole of what he has acquired, but only for that part in which the slave had a co-heir,

Notes

  1. 28.5.38.preodem modo, quo is — A correlative construction meaning "in the same manner as he". The phrase "eodem modo" in the main clause correlates with "quo" (functioning as a relative adverb of manner, equivalent to an ablative of manner) which introduces the relative clause limiting "is".
  2. 28.5.38.1intra kalendas quidem neque liber neque heres erit, nisi decem dederit — A conflict between a conditional manumission by testament (on condition of paying ten before the deadline) and an unconditional manumission by codicil. Until the deadline (Kalends of December), because the possibility of fulfilling the testamentary condition remains open, the immediate effect of the unconditional manumission from the codicil is suspended; thus, the slave is neither free nor heir unless he pays.
  3. 28.5.38.3quo iam extincta institutio inutilis fuerat — The relative adverb "quo" refers back to the antecedent "eo tempore" (at that time). If the slave is alienated after the failure of the condition, the appointment as heir has already been extinguished and become void at the moment of transfer, meaning the purchaser cannot order the slave to enter upon the inheritance.
  4. 28.5.38.5restituere coheredi serui — "To restore to the co-heir of the slave". The slave was appointed heir to a part by the purchaser (emptor). Although the seller, as the owner before delivery, can command the slave to enter upon the inheritance, he must restore the acquired portion to the "co-heir of the slave" (here, the purchaser), since he should not profit from the slave he has already sold.

Cite this passage

Justinian I, The Digest of Justinian §28.5.38.pr-28.5.38.5. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:28.5.38.pr-28.5.38.5

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