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Justinian I · The Digest of Justinian §29.2.32.pr-29.2.32.2

Uncertainty of Facts and Conditions in Inheritance Acceptance

Passage 4435 of 9271 · Latin

Summary

An appointed heir cannot validly accept an inheritance if they are subjectively uncertain about the testator's survival, the unconditional or conditional nature of their appointment, or the testator's legal status, even if the objective facts would otherwise allow the succession.

[ULPIANUS libro octauo ad Sabinum. ] §29.2.32.preres institutus si putet testatorem uiuere, quamuis iam defunctus sit, adire hereditatem non potest.
[ULPIANUS in the eighth book on Sabinus.] An appointed heir, if he thinks that the testator is alive, although the latter is already deceased, cannot accept the inheritance.
§29.2.32.1Sed et si scit se heredem institutum, sed utrum pure an sub condicione ignoret, non poterit adire hereditatem, licet pure heres institutus sit, et sub condicione licet paruerit condicioni.
But also, if he knows that he has been appointed heir, but is ignorant whether it is unconditionally or under a condition, he will not be able to accept the inheritance, even though he has been appointed unconditionally, or, if under a condition, although he has fulfilled the condition.
§29.2.32.2Sed et si de condicione testatoris incertus sit, pater familias an filius familias sit, non poterit adire hereditatem, etsi eius condicionis sit in ueritate, ut testari potuerit.
But also, if he is uncertain about the status of the testator, whether he is a pater familias or a filius familias, he will not be able to accept the inheritance, even though in truth the testator was of such a status that he was able to make a will.

Notes

  1. §29.2.32.prheres institutus si putet testatorem uiuere — The acceptance of an inheritance (aditio) requires not only the objective fact of the testator's death but also the heir's subjective awareness of the opening of the succession. Therefore, an heir who mistakenly believes that the testator is still alive (putet) cannot validly accept the inheritance.
  2. §29.2.32.1licet pure heres institutus sit, et sub condicione licet paruerit condicioni — A parallel structure of concessive clauses. The first part `licet... sit` refers to the case where the heir was objectively appointed unconditionally. The second part `sub condicione licet paruerit condicioni` means that if appointed under a condition, even though he has fulfilled that condition, he cannot accept as long as he remains subjectively uncertain.
  3. §29.2.32.2eius condicionis sit in ueritate, ut testari potuerit — A correlative construction featuring the genitive of quality `eius condicionis` and the consecutive `ut` clause. The phrase `in ueritate` (in truth, in reality) emphasizes the contrast between the objective reality (that the testator actually had the status to make a will) and the heir's subjective uncertainty (incertus sit).

Cite this passage

Justinian I, The Digest of Justinian §29.2.32.pr-29.2.32.2. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:29.2.32.pr-29.2.32.2

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