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Justinian I · The Digest of Justinian §29.1.28.pr

Substitution and Appointment of Tutors by a Soldier Son

Passage 4387 of 9271 · Latin

Summary

This section relates a rescript of the Divine Brothers stating that when a soldier who was a filius familias appointed his impuberal son (who was under his grandfather's power) as heir, designating a substitute and tutors, the substitution was valid but the appointment of tutors was invalid because a soldier cannot diminish another's rights.

[ULPIANUS libro trigensimo sexto ad Sabinum. ] §29.1.28.prCum filius familias miles decessisset filio impubere herede instituto eique substituisset in aui potestate manenti tutoresque dedisset, diui fratres rescripserunt substitutionem quidem ualere, tutoris autem dationem non ualere, quia hereditati quidem suae miles qualem uellet substitutionem facere potest, uerum tamen alienum ius minuere non potest.
[ULPIANUS, in his thirty-sixth book on Sabinus.] When a soldier who was a filius familias died, having instituted his impuberal son—who remained under the power of his grandfather—as heir, and had substituted another for him, and had also appointed tutors for him, the Divine Brothers replied by rescript that while the substitution was indeed valid, the appointment of tutors was not; for a soldier can indeed make whatever substitution he wishes with respect to his own inheritance, but he cannot, nevertheless, diminish another's right.

Notes

  1. §29.1.28.prfilio impubere herede instituto — Ablative absolute construction. Meaning "having instituted his impuberal son as heir," expressing the circumstance or precondition of the main action (decessisset).
  2. §29.1.28.prin aui potestate manenti — The present participle manenti is in the dative singular, agreeing with ei in the preceding eique (referring to the impuberal son), indicating his status of remaining under the grandfather's paternal power.
  3. §29.1.28.pralienum ius — Literally "another's right," which here specifically refers to the grandfather's paternal power (patria potestas) over the grandson. Under military privilege, a soldier could freely dispose of his own property by will, but he could not infringe upon the paternal rights of another (such as the right to appoint tutors).

Cite this passage

Justinian I, The Digest of Justinian §29.1.28.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:29.1.28.pr

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