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Justinian I · The Digest of Justinian §29.2.21.pr-29.2.21.3

Validity of Acting as Heir and the Effect of Ignorance

Passage 4424 of 9271 · Latin

Summary

Ulpianus discusses that holding property with the intent of theft does not constitute acting as heir, and that sometimes intention alone can bind someone to an inheritance. He also explains the conditions under which acting as heir is valid and the impact of ignorance regarding one's share or the fulfillment of a condition.

[IDEM libro septimo ad Sabinum. ] §29.2.21.prSi quis extraneus rem hereditariam quasi subripiens uel expilans tenet, non pro herede gerit: nam admissum contrariam uoluntatem declarat.
[THE SAME in the seventh book on Sabinus.] If any stranger holds inherited property as if stealing or plundering it, he does not act as heir; for the offense committed declares a contrary intention.
§29.2.21.1Interdum autem animus solus eum obstringet hereditati, ut puta si re non hereditaria quasi heres usus sit.
Sometimes, however, intention alone will bind him to the inheritance, as, for instance, if he used property that was not inherited as if he were the heir.
§29.2.21.2Sed ita demum pro herede gerendo adquiret hereditatem, si iam sit ei delata: ceterum ex quibus causis repudiantem nihil agere diximus, ex isdem causis nec pro herede gerendo quicquam agere sciendum est.
But he will acquire the inheritance by acting as heir only if it has already been offered to him; as for the rest, it must be known that for the same reasons we have said a person repudiating does nothing, for those same reasons he does nothing by acting as heir.
§29.2.21.3Si quis partem ex qua institutus est ignorauit, Iulianus scribit nihil ei nocere, quominus pro herede gereret.
If someone was ignorant of the share for which he was appointed, Julian writes that this does not prevent him from acting as heir.
quod et Cassius probat, si condicionem, sub qua heres institutus est, non ignorat, si tamen exstitit condicio, sub qua substitutus est.
Cassius also approves of this, provided that he is not ignorant of the condition under which he was appointed heir, if, however, the condition under which he was substituted has been fulfilled.
quid tamen si ignorat condicionem exstitisse? puto posse adire hereditatem, quemadmodum si ignoret, an coheredis, cui substitutus est, repudiatione portio ei delata sit.
But what if he is ignorant that the condition has been fulfilled? I think he can enter upon the inheritance, just as if he were ignorant whether a share has been offered to him by the repudiation of a co-heir to whom he was substituted.

Notes

  1. §29.2.21.pradmissum — A substantivized neuter perfect participle of `admitto`, meaning "offense committed" or "wrongdoing." It serves as the subject of `contrariam uoluntatem declarat`.
  2. §29.2.21.2pro herede gerendo — An expression involving the gerund in the ablative (`gerendo`), expressing the means or instrument: "by acting as heir."
  3. §29.2.21.3quominus — A conjunction introducing a subjunctive clause (`gereret`) after expressions of prevention or hindrance (here `nihil ei nocere`, "does not prevent/harm him"), meaning "from [doing something]."
  4. §29.2.21.3an coheredis, cui substitutus est, repudiatione portio ei delata sit — An indirect question clause serving as the object of the main verb `ignoret` (is ignorant). `an` introduces "whether," and the verb is in the subjunctive (`delata sit`). `cui` is a dative relative pronoun referring back to `coheredis`.

Cite this passage

Justinian I, The Digest of Justinian §29.2.21.pr-29.2.21.3. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:29.2.21.pr-29.2.21.3

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