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Justinian I · The Digest of Justinian §28.7.23.pr

Fulfillment of Marriage Conditions Prevented by the Other Party

Passage 4343 of 9271 · Latin

Summary

On the appointment of heirs subject to the condition of marrying a specific cousin, this section establishes the legal principle that if the failure to marry is due to the cousin's refusal rather than the heirs' own, the condition is treated as constructively fulfilled, resulting in equal shares for both.

[MARCELLUS libro duodecimo digestorum. ] §28.7.23.pr'Uter ex fratribus meis consobrinam nostram duxerit uxorem, ex dodrante, qui non duxerit, ex quadrante heres esto'.
[MARCELLUS, in the twelfth book of the Digests.] 'Whichever of my brothers marries our cousin shall be heir to nine-twelfths, and he who does not marry her shall be heir to three-twelfths'.
aut nubit alteri aut non uult nubere.
She either marries one of them or does not wish to marry.
consobrinam qui ex his duxit uxorem, habebit dodrantem, erit alterius quadrans.
The one of them who marries the cousin will have nine-twelfths, and the share of the other will be three-twelfths.
si neuter eam duxerit uxorem, non quia ipsi ducere noluerunt, sed quia illa nubere noluerit, ambo in partes aequales admittuntur: plerumque enim haec condicio: 'si uxorem duxerit', 'si dederit', 'si fecerit' ita accipi oportet, quod per eum non stet, quo minus ducat det aut faciat.
If neither of them marries her, not because they themselves did not wish to marry her, but because she did not wish to marry, both are admitted to equal shares; for generally such a condition as 'if he marries', 'if he gives', 'if he does' ought to be accepted in this sense, that it is not due to him that he does not marry, give, or do.

Notes

  1. §28.7.23.prex dodrante — Roman inheritance shares are calculated based on a unit of twelve (the *as*). `dodrans` (nine-twelfths, or three-quarters) and `quadrans` (three-twelfths, or one-quarter) represent these respective proportional shares.
  2. §28.7.23.prper eum non stet, quo minus — This is a negative form of the impersonal expression `per aliquem stat, quo minus...` ("it is due to someone that ... not", "someone prevents that ..."), using the subjunctive `stet`. It expresses the legal fiction (doctrine of constructive fulfillment) where a condition is treated as fulfilled because the failure to fulfill it was not due to the person bound by the condition.

Cite this passage

Justinian I, The Digest of Justinian §28.7.23.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:28.7.23.pr

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