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Justinian I · The Digest of Justinian §28.7.7.pr

Conditions Requiring Fraudulent Guarantees to Circumvent Legacies

Passage 4327 of 9271 · Latin

Summary

Pomponius states that if a condition requires heirs to mutually guarantee the return of legacies to circumvent laws forbidding certain persons from receiving them, such a condition is remitted, and the promisor would be protected by an exception even if the guarantee were made.

[POMPONIUS libro quinto ad Sabinum. ] §28.7.7.prSi quis sub condicione heredes instituisset, si inuicem cauissent se legata eo testamento relicta reddituros, placet remitti eis condicionem, quia ad fraudem legum respiceret, quae uetarent quosdam legata capere: quamquam et si cautum esset, in ipsa actione exceptione tuendus esset promissor.
[POMPONIUS, in the fifth book on Sabinus.] If anyone had appointed heirs under a condition, namely, "if they should mutually guarantee that they would return the legacies left by that testament," it is held that the condition is remitted to them, because it would look toward the circumvention of the laws which forbid certain persons to receive legacies; although even if the guarantee had been given, the promisor ought to be protected by an exception in the action itself.

Notes

  1. §28.7.7.prremitti — A passive infinitive forming the subject clause (`condicionem remitti`) of the main verb `placet` ("it is held"). In juristic contexts, it signifies that an unlawful or impossible condition is "remitted" (treated as non-existent so that the inheritance remains valid).
  2. §28.7.7.prfraudem legum — Refers to the "circumvention of the laws" (fraus legi). It denotes a deceptive act that does not directly violate the letter of the law but aims to achieve a forbidden result (here, a legacy to an ineligible person) through indirect agreements (such as mutual promises between heirs to return the legacy).
  3. §28.7.7.prtuendus esset — A combination of the gerundive (future passive participle) and the imperfect subjunctive of `esse`, functioning as a pluperfect subjunctive in the apodosis to the conditional clause `et si cautum esset` ("even if the guarantee had been given"). It expresses a past counterfactual obligation or propriety ("ought to have been protected").

Cite this passage

Justinian I, The Digest of Justinian §28.7.7.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:28.7.7.pr

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