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Justinian I · The Digest of Justinian §28.8.11.pr

Whether the Term Son Includes a Freedman Son

Passage 4359 of 9271 · Latin

Summary

In a case where a testator who had a freedman son willed that the slave Dama should be freed if no son came into his own guardianship, the conflicting views of Trebatius and Labeo, and Iauolenus' resolution regarding whether the term "son" includes a freedman son, are presented.

[IAUOLENUS libro quarto ex posterioribus Labeonis. ] §28.8.11.prQui filium libertinum habebat, heredem eum instituerat, deinde ita scripserat: 'si mihi filius nullus erit, qui in suam tutelam ueniat, tum Dama seruus liber esto': is filius pupillus libertinus erat: quaerebatur, si Dama liber esset.
[IAUOLENUS, in the fourth book from the posthumous works of Labeo.] A certain person who had a freedman son had instituted him as his heir, and had then written as follows: "If there shall be no son of mine who comes into his own guardianship, then let Dama the slave be free." This son was a pupil freedman. It was asked whether Dama was free.
Trebatius negat, quia filii appellatione libertinus quoque contineretur: Labeo contra, quia eo loco uerum filium accipi oportet.
Trebatius says no, because a freedman is also included under the designation of "son." Labeo is of the contrary opinion, because in that place "son" ought to be understood as a true son.
Trebatii sententiam probo, si tamen testatorem de hoc filio locutum esse apparet.
I approve of Trebatius' opinion, provided, however, it appears that the testator was speaking of this son.

Notes

  1. 28.8.11.prin suam tutelam ueniat — This phrase usually means "to come under one's own guardianship," which can refer to either "having a guardian appointed for oneself (upon the death of the paterfamilias)" or "becoming independent by escaping guardianship (reaching majority)." In this context, it is understood to refer to the situation where the under-age son, upon the father's death, becomes sui iuris and thus requires the establishment of guardianship for himself.
  2. 28.8.11.prTrebatius negat — The verb negat (denies) means that Trebatius denies that the slave Dama becomes free (liber esset). Since Trebatius holds that the term "son" (filius) includes a freedman son, the condition "if there shall be no son of mine" is not fulfilled, and thus Dama does not obtain freedom.
  3. 28.8.11.pruerum filium — "True son" (uerum filium) here refers to a natural or legitimate son. Labeo argued that the term "son" in a will should be understood in the strict legal sense of a legitimate son, excluding a freedman son. Consequently, the condition "if there is no son" would be met, and Dama would become free.

Cite this passage

Justinian I, The Digest of Justinian §28.8.11.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:28.8.11.pr

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