Humanitext Reader

Justinian I · The Digest of Justinian §28.5.55.pr

Substitution for a Sold Slave and the Purchaser's Will

Passage 4234 of 9271 · Latin

Summary

This section discusses the conflict and effect of a father's substitution of a slave sold by his pupil, and the subsequent institution of the same slave by his new owner, Titius, in his will.

[NERATIUS libro primo membranarum. ] §28.5.55.prPater filio impuberi seruum heredem substituit liberumque esse iussit: eum pupillus uendidit Titio: Titius eum iam primo testamento facto in secundo testamento liberum heredemque esse iussit.
[NERATIUS, Parchments, Book 1] A father substituted a slave as heir to his impuberal son and ordered him to be free; the pupil sold him to Titius; Titius, having already made a first will, ordered him in a second will to be free and his heir.
superius testamentum Titii ruptum est, quia is seruus et heres potest esse et, ut superius testamentum rumpatur, sufficit ita posterius factum esse, ut aliquo casu potuerit ex eo heres existere.
The former will of Titius is revoked, because that slave can be an heir, and for a former will to be revoked, it is sufficient that a subsequent one is so made that in some event an heir could emerge from it.
quod ad uim autem eius institutionis pertinet, ita se res habet, ut, quamdiu pupillo ex ea substitutione heres potest esse, ex Titii testamento libertatem hereditatemque consequi non possit: si pupillus in suam tutelam peruenerit, perinde ex Titii testamento liber heresque sit ac si pupillo substitutus non fuisset: si pupillo heres exstitit, propius est, ut Titio quoque, si uelit, heres esse possit.
As far as the force of that institution is concerned, however, the matter stands thus: as long as he can be an heir to the pupil under that substitution, he cannot obtain freedom and the inheritance from the will of Titius; if the pupil has come into his own guardianship, let him be free and heir under the will of Titius just as if he had not been substituted to the pupil; if he has become heir to the pupil, it is more correct that he can also be heir to Titius, if he wishes.

Notes

  1. 28.5.55.prsufficit ita posterius factum esse, ut aliquo casu potuerit ex eo heres existere — The subject of the impersonal verb `sufficit` is the accusative and infinitive clause `posterius factum esse`, which is modified by the correlative adverb `ita` and the consecutive `ut` clause. It states the principle that for a prior will to be revoked, it is sufficient that the subsequent will is validly executed in such a manner that an heir could potentially emerge from it under some circumstances, without requiring that an heir actually enters upon the inheritance.
  2. 28.5.55.prin suam tutelam peruenerit — A legal idiom meaning that the ward (pupillus) has reached the age of puberty, thereby ending the guardianship (tutela) under which he was placed. Consequently, the possibility of the pupillary substitution (substitutio pupillaris) taking effect is extinguished, which removes the suspension on the institution in Titius's will.
  3. 28.5.55.prpropius est — An impersonal expression meaning "it is more correct" or "it is closer to the true legal principle," governing a subjunctive `ut` clause. Since the slave has already gained freedom through the pupillary substitution, this phrase indicates that regarding the inheritance from Titius (where he would normally have been a compulsory heir as Titius's slave), he should be treated as a free man who has the right to accept the inheritance of his own volition (si uelit).

Cite this passage

Justinian I, The Digest of Justinian §28.5.55.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:28.5.55.pr

Please note the AI-draft status of the translation and the date accessed.

Translation, notes and summary are AI-generated drafts, revised through reader feedback.