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Justinian I · The Digest of Justinian §28.5.51.pr-28.5.51.2

Repurchase of an Appointed Slave, Impossible Conditions, and Estate Fractions

Passage 4230 of 9271 · Latin

Summary

Ulpian discusses the impact of selling and repurchasing a slave instituted as heir with freedom, the treatment of impossible negative conditions in the institution of an heir, and the terminology for duodecimal fractions of an estate.

[ULPIANUS libro sexto regularum. ] §28.5.51.prSeruum meum heredem institutum cum libertate si uiuus uendidero ei, cum quo testamenti factio non est, posteaque eum redemero, ex testamento mihi heres esse poterit nec medium tempus, quo apud eum fuit, uitiauit institutionem, quia uerum est utroque tempore tam testamenti faciendi quam mortis tempore meum fuisse.
If, during my lifetime, I sell my slave who has been instituted heir with his freedom to someone with whom there is no testamenti factio, and I afterwards buy him back, he can be my heir under the will; nor does the intervening time, during which he was with that person, invalidate the institution, because it is true that he was mine at both times, both at the time of making the will and at the time of death.
unde si apud eum remanserit, uitiatur institutio: uel si cum eo testamenti factio est, iussu eius adeundo adquiret ei hereditatem.
Hence, if he remains with that person, the institution is invalidated; or, if there is testamenti factio with him, he will acquire the inheritance for him by entering upon it by his order.
§28.5.51.1Si in non faciendo impossibilis condicio institutione heredis sit expressa, secundum omnium sententiam heres erit, perinde ac si pure institutus esset. H
If an impossible condition in not doing something is expressed in the institution of an heir, according to the opinion of all he will be heir, just as if he had been instituted unconditionally.
§28.5.51.2ereditas plerumque diuiditur in duodecim uncias, quae assis appellatione continentur.
An inheritance is usually divided into twelve unciae, which are contained under the designation of an as.
habent autem et hae partes propria nomina ab uncia usque ad assem, puta haec: sextans quadrans triens quincunx semis septunx bes dodrans dextans deunx as.
Moreover, these parts also have their own names from the uncia up to the as, for example: sextans, quadrans, triens, quincunx, semis, septunx, bes, dodrans, dextans, deunx, as.

Notes

  1. 28.5.51.prei, cum quo testamenti factio non est — The relative clause indicates that the buyer to whom the slave was sold lacks testamentary capacity (testamenti factio). In this case, because acquisition of the inheritance for the new master by his order is impossible, only the ownership status at the times of the making of the will and the testator's death is considered.
  2. 28.5.51.priussu eius adeundo adquiret ei hereditatem — Both the genitive pronoun 'eius' and the dative 'ei' refer to the buyer of the slave (the new master). The implied subject of the ablative gerund 'adeundo' is the slave, who enters upon the inheritance by the order (iussu eius) of the master, thereby acquiring it for him (ei).
  3. 28.5.51.1in non faciendo impossibilis condicio — Refers to an impossible condition consisting of not doing something (a negative impossible condition). Since it is impossible to perform an impossible act (e.g., 'not touching the sky'), the condition of not doing it is inevitably fulfilled; therefore, in Roman law, such a condition is treated as unwritten (i.e., unconditional), and the institution of the heir remains valid.
  4. 28.5.51.2Hereditas plerumque diuiditur — In the manuscript tradition, this is split into 'H' and 'ereditas', but it must be read as a single word, 'Hereditas' (inheritance). In Roman law, the entire estate was equated to one 'as' (12/12), and the shares of co-heirs were designated using the specific names of duodecimal fractions based on the 'uncia' (1/12).

Cite this passage

Justinian I, The Digest of Justinian §28.5.51.pr-28.5.51.2. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:28.5.51.pr-28.5.51.2

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