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Justinian I · The Digest of Justinian §28.5.72.pr-28.5.72.1

Conditions on Past Facts and Scope of Captatory Institutions

Passage 4251 of 9271 · Latin

Summary

Paulus argues that institutions of heirs dependent on past facts rather than future conditions are not captatory, and that devices directing the capture toward a third party also fall under the senatorial prohibition.

[PAULUS libro quinto ad legem Iuliam et Papiam. ] §28.5.72.prIllae autem institutiones captatoriae non sunt, ueluti si ita heredem quis instituat: 'qua ex parte Titius me heredem instituit, ex ea parte Maeuius heres esto', quia in praeteritum, non in futurum institutio collata est.
[PAULUS, On the Lex Julia et Papia, book 5.] However, those institutions of heirs are not captatory, for instance, if anyone should institute an heir as follows: "In whatever part Titius has instituted me as heir, in that part let Maeuius be heir"; because the institution is referred to the past, not to the future.
§28.5.72.1Sed illud quaeri potest, an idem seruandum sit quod senatus censuit, etiamsi in aliam personam captionem direxerit, ueluti si ita scripserit: 'Titius, si Maeuium tabulis testamenti sui heredem a se scriptum ostenderit probaueritque, heres esto', quod in sententiam senatus consulti incidere non est dubium.
But it can be asked whether the same rule should be observed which the senate decreed, even if he has directed the catch toward another person, for instance, if he has written as follows: "Let Titius be heir, if he shows and proves that he has designated Maeuius as heir in his own will"; and there is no doubt that this falls under the meaning of the senatorial decree.

Notes

  1. §28.5.72.prcollata est — The perfect passive indicative 3rd person singular of `conferre`, here meaning "referred to" or "made dependent on". Because the institution of the heir (`institutio`) is made dependent on the "past" (`in praeteritum`), i.e. a pre-existing fact, rather than on a future uncertainty, it is not considered captatory (which would restrict the future freedom of another's will).
  2. §28.5.72.1captionem — Refers to the "catch" or "captatory device" designed to elicit a legacy from another. Literally, "even if he directed the catch toward another person" (`in aliam personam`), referring to an improper attempt to prompt the testee to institute a third party (here, Maeuius) rather than the testator himself.

Cite this passage

Justinian I, The Digest of Justinian §28.5.72.pr-28.5.72.1. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:28.5.72.pr-28.5.72.1

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