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Justinian I · The Digest of Justinian §28.7.18.pr-28.7.18.1

Repetition of Institution Conditions in Subsequent Legacies

Passage 4338 of 9271 · Latin

Summary

Explains the legal principle that when a person appointed as an heir under a condition is instead to receive a legacy if they do not become heir, the condition of the institution is deemed to be repeated in the legacy.

[MARCIANUS libro septimo institutionum. ] §28.7.18.prCum seruus pure liber et heres scriptus sub condicione sit et, si heres non exstiterit, legatum acceperit, in legato repetitam uideri condicionem diuus Pius rescripsit.
[MARCIANUS, in the seventh book of Institutes.] Where a slave has been appointed unconditionally free and heir under a condition, and, if he should not become heir, has received a legacy, the Divine Pius replied by rescript that the condition is deemed to be repeated in the legacy.
H §28.7.18.1ac ratione et Papinianus scribit, cum auia nepotem sub condicione emancipationis pro parte heredem instituit et postea codicillis scriptis hoc amplius ei legauit quam quod heredem eum instituit, repetitam uideri condicionem emancipationis etiam in legato, quamuis in legato nullam, ut in hereditate, substitutionem fecisset.
H And for the same reason, Papinian also writes that when a grandmother appointed her grandson heir for a share under the condition of emancipation, and afterwards, by executing a codicil, bequeathed to him further than what she had appointed him heir to, the condition of emancipation is deemed to be repeated also in the legacy, although she had made no substitution in the legacy as she had done in the inheritance.

Notes

  1. §28.7.18.prin legato repetitam uideri condicionem — repetitam is the accusative feminine singular of the perfect passive participle repetita, forming an accusative-and-infinitive (AcI) construction with the passive infinitive uideri ("to seem" or "to be deemed"). The verb repetere ("to repeat") indicates that the condition attached to the institution as heir is tacitly carried over and applied to the legacy as well.
  2. §28.7.18.1hoc amplius ... quam quod — hoc functions here with the comparative amplius ("more than this" or "further"), indicating the degree of difference. quam quod introduces the comparative clause ("than that which..."), establishing a comparison with the share of the inheritance.
  3. §28.7.18.1quamuis ... fecisset — The conjunction quamuis ("although") is followed by the subjunctive mood (here, the pluperfect fecisset) to state a concessive fact. It highlights the circumstance in Papinian's opinion that while a substitution (substitutio) had been made in the case of the inheritance (hereditas), none was explicitly made in the case of the legacy (legatum).

Cite this passage

Justinian I, The Digest of Justinian §28.7.18.pr-28.7.18.1. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:28.7.18.pr-28.7.18.1

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