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Justinian I · The Digest of Justinian §28.5.70.pr

Institution of Whichever Heir Wishes and Necessary Heirs

Passage 4249 of 9271 · Latin

Summary

Regarding the validity of the addition 'whichever wishes to be heir' in the institution of heirs, the text discusses the difference between ordinary and necessary heirs, concluding that if both wish to be heirs, both become heirs.

[PROCULUS libro secundo epistularum. ] §28.5.70.pr'Cornelius et Maeuius, uter eorum uolet, heres esto': uterque uult: Trebatius neutrum fore heredem, Cartilius utrumque: tu cui adsentiaris? Proculus: Cartilio adsentio et illam adiectionem 'uter eorum uolet' superuacuam puto: id enim etiam ea non adiecta futurum fuit, ut, uter uellet, heres esset, uter nollet, heres non esset.
[PROCULUS, Letters, book 2.]\n 'Let Cornelius and Maevius, whichever of them wishes, be heir': both of them wish: Trebatius thinks that neither will be heir, Cartilius that both: with whom do you agree? Proculus: I agree with Cartilius, and I think that that addition 'whichever of them wishes' is superfluous: for even without that addition, it would have happened that whichever wished would be heir, and whichever did not wish would not be heir.
quod si hi ex numero necessariorum heredum essent, tum id non frustra adiectum esse et non solum figuram, sed uim quoque condicionis continere: dicerem tamen, si uterque heres esse uellet, utrumque heredem esse.
But if these had been of the class of necessary heirs, then (I would say) that it was not added in vain, and that it contained not only the form but also the force of a condition; I would nevertheless say that, if both wished to be heir, both are heirs.

Notes

  1. 28.5.70.prea non adiecta — Ablative absolute with the feminine noun adiectio (addition) as its logical subject. It expresses a concessive or hypothetical meaning: 'even if that addition had not been made'.
  2. 28.5.70.prfuturum fuit, ut — An impersonal construction where the indicative perfect futurum fuit is followed by an ut-clause. The use of the indicative instead of the subjunctive pluperfect (futurum fuisset) emphasizes the factual certainty or inevitability ('it would certainly have happened') of the hypothetical result.
  3. 28.5.70.prid non frustra adiectum esse — An accusative with infinitive clause following quod si... essent (subjunctive imperfect, present counterfactual condition). Syntactically, it is either governed by dicerem (I would say) located at the end of the sentence as a fronted object clause, or implies a missing verb of thinking such as putarem (I would think).

Cite this passage

Justinian I, The Digest of Justinian §28.5.70.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:28.5.70.pr

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