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Justinian I · The Digest of Justinian §28.7.11.pr

Fulfillment of an Adoption Condition Prevented by Third Party

Passage 4331 of 9271 · Latin

Summary

It is discussed that if a will conditions a son's inheritance on his adopting someone, but that person refuses to be adopted despite the son's readiness, the condition is treated as fulfilled and the son becomes the heir.

[IULIANUS libro uicesimo nono digestorum. ] §28.7.11.prSi quis testamento hoc modo scripserit: 'filius meus si Titium adoptauerit, heres esto: si non adoptauerit, exheres esto' et filio parato adoptare Titius nolit se adrogandum dare, erit filius heres quasi expleta condicione.
[JULIANUS, in the twenty-ninth book of the Digests.] If anyone should have written in a testament in this manner: 'Let my son, if he shall have adopted Titius, be heir; if he shall not have adopted him, let him be disinherited', and, while the son is prepared to adopt him, Titius is unwilling to give himself to be adrogated, the son will be heir as if the condition had been fulfilled.

Notes

  1. §28.7.11.prse adrogandum dare — The gerundive adrogandum is used with dare to express purpose or causative action ("to give himself to be adrogated"). The transition from adoptare in the testament to adrogare here indicates that Titius was a person independent of paternal power (sui iuris), for whom the specific form of adoption was adrogatio.
  2. §28.7.11.prquasi expleta condicione — An ablative absolute construction (expleta condicione) introduced by the conjunction quasi ("as if the condition had been fulfilled"). This illustrates the legal principle of fictional fulfillment of a condition: if the non-fulfillment is due to the refusal of a third party (Titius) and not the beneficiary (the son), the condition is legally deemed to have been satisfied.

Cite this passage

Justinian I, The Digest of Justinian §28.7.11.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:28.7.11.pr

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