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Justinian I · The Digest of Justinian §29.2.62.pr-29.2.62.1

Conditional Oath of Heir and Inheritance by Alienated Slave

Passage 4465 of 9271 · Latin

Summary

On the dispute between Labeo and Javolenus regarding the requirements of acting as heir under a conditional institution to swear, and the requirement of a master's command when an instituted slave is alienated.

[IAUOLENUS libro primo ex posterioribus Labeonis. ] §29.2.62.prAntistius Labeo ait, si ita institutus sit 'si iurauerit, heres esto', quamuis iurauerit, non tamen eum statim heredem futurum, antequam pro herede aliquid gesserit, quia iurando uoluntatem magis suam declarasse uideatur.
[IAUOLENUS, in the first book from the posthumous works of Labeo.] Antistius Labeo says that if someone has been appointed in this way, "If he swears, let him be heir," even though he has sworn, he will not, however, immediately become heir before he has done something as heir, because by swearing he seems rather to have declared his intention.
ego puto satis eum pro herede gessisse, si ut heres iuranerit: Proculus idem, eoque iure utimur.
I think that he has sufficiently acted as heir if he has sworn as heir; Proculus is of the same opinion, and we follow this rule.
§29.2.62.1Si seruus heres institutus post iussum domini, antequam adiret, alienatus esset, nouum iussum posterioris domini, non iussum prioris exigitur.
If a slave appointed as heir, after the command of his master but before he accepted the inheritance, has been alienated, a new command of the subsequent master, and not the command of the former one, is required.

Notes

  1. §29.2.62.prpro herede aliquid gesserit — The phrase "pro herede gerere" (to act as heir) is a technical legal term in Roman law referring to an informal, tacit acceptance of an inheritance. While Labeo limits this to factual acts of estate administration, Javolenus argues that swearing itself, if done "as heir", is sufficient to satisfy this requirement.
  2. §29.2.62.1antequam adiret — The subject of the imperfect subjunctive "adiret" is the "seruus" (slave), who is also the subject of the main clause. Since the legal effect of "adire" (accepting the inheritance) depends on the master's command, if the slave is alienated, the command must come from the new owner (posterior dominus) who is to acquire the benefits.

Cite this passage

Justinian I, The Digest of Justinian §29.2.62.pr-29.2.62.1. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:29.2.62.pr-29.2.62.1

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