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Justinian I · The Digest of Justinian §28.5.5.pr

Possibility of Condition's Fulfillment and Intestate Succession

Passage 4184 of 9271 · Latin

Summary

Marcellus' note on Julian, arguing that whether a son becomes an intestate heir of his father depends on whether the condition of his institution is of a nature that becomes impossible to fulfill at the last moment of his life, or remains capable of fulfillment until the very end.

[MARCELLUS Apud IULIANUM libro uicensimo nono digestorum notat. ] §28.5.5.prSi eiusmodi sit condicio, sub qua filius heres institutus sit, ut ultimo uitae eius tempore certum sit eam existere non posse et pendente ea decedat, intestato patri heres erit, ueluti 'si Alexandriam peruenerit, heres esto': quod si etiam nouissimo tempore impleri potest, ueluti 'si decem Titio dederit, heres esto', contra puto.
[MARCELLUS Apud IULIANUM libro uicensimo nono digestorum notat.] If the condition under which a son was instituted heir is of such a kind that at the last moment of his life it is certain that it cannot be fulfilled, and he dies while it is pending, he will be heir to his intestate father; for example, 'if he shall have reached Alexandria, let him be heir.' But if it can be fulfilled even at the very last moment, for example, 'if he shall have given ten to Titius, let him be heir,' I think the contrary.

Notes

  1. §28.5.5.prultimo uitae eius tempore — Ablative of time when, meaning "at the last moment of his life." The genitive eius refers to the "son" (filius) who was instituted heir.
  2. §28.5.5.prpendente ea — Ablative absolute for ea [condicione] pendente, meaning "while that condition is pending or unresolved." pendere is a legal term indicating that a condition has neither been fulfilled nor failed yet.
  3. §28.5.5.prcontra puto — I think the contrary, expressing Marcellus's own view. In contrast to the first case where the son becomes heir to his intestate father, here, if the condition could be fulfilled until the very last moment, he thinks the contrary (i.e., the son does not become an intestate heir, but is excluded for non-fulfillment, as Julian argued in §28.5.4.pr).

Cite this passage

Justinian I, The Digest of Justinian §28.5.5.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:28.5.5.pr

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