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Justinian I · The Digest of Justinian §28.5.52.pr-28.5.52.1

Conditional Slave Institution and Alienation Before Death

Passage 4231 of 9271 · Latin

Summary

Discusses the validity of conditional clauses when instituting a slave as heir with freedom, and the legal effects if the slave is alienated or manumitted during the testator's lifetime.

[MARCIANUS libro tertio regularum. ] §28.5.52.prTalem institutionem quidam ualere non putabant: 'Stichus liber esto et, si liber erit, heres esto'. sed diuus Marcus rescripsit hanc institutionem ualere perinde atque si non erat adiectum 'si liber erit'.
Some were of the opinion that such an institution was not valid: "Let Stichus be free, and, if he shall be free, let him be heir." But the divine Marcus replied by rescript that this institution is valid just as if "if he shall be free" had not been added.
§28.5.52.1Si quis ita scripserit: 'Stichus, si meus erit cum morior, liber et heres esto', alienatus non poterit iussu emptoris adire hereditatem, quamuis, etsi non erat hoc expressum, non alias liber et heres fieri poterat, quam si mansisset eius.
If anyone should write as follows: "Let Stichus, if he shall be mine when I die, be free and heir," if alienated, he will not be able to enter upon the inheritance by order of the buyer, although, even if this had not been expressed, he could not have become free and heir otherwise than if he had remained his.
sed si uiuus eum manumiserit, Celsus libro quinto decimo digestorum scribit fieri hunc heredem: non enim hunc casum testatorem uoluisse excludere palam est neque uerba omnino repugnant: nam quamuis seruus eius non est, at certe libertus est.
But if he manumits him during his lifetime, Celsus writes in the fifteenth book of the Digests that he becomes heir: for it is clear that the testator did not wish to exclude this case, nor do the words at all conflict; for although he is not his slave, yet he is certainly his freedman.

Notes

  1. 28.5.52.1alienatus — A perfect passive participle in the nominative masculine singular modifying the subject Stichus, carrying a conditional force ("if he has been alienated").
  2. 28.5.52.1mansisset eius — "eius" is a possessive genitive ("his [slave]"). "mansisset" is a pluperfect subjunctive forming a past contrary-to-fact condition ("otherwise than if he had remained his") that corresponds to the past potentiality of "fieri poterat" (indicative imperfect).
  3. 28.5.52.1fieri hunc heredem — An accusative and infinitive construction (A.C.I.) acting as the object clause of the verb "scribit", where the accusative demonstrative "hunc" is the subject and "fieri" is the present passive infinitive.

Cite this passage

Justinian I, The Digest of Justinian §28.5.52.pr-28.5.52.1. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:28.5.52.pr-28.5.52.1

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