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Justinian I · The Digest of Justinian §29.2.75.pr

Invalidity of Estate Possession and Entry Caused by Mistake as to Share

Passage 4478 of 9271 · Latin

Summary

In the case where Titius, appointed as heir to one-half of the estate, mistakenly petitioned for possession of one-fourth, it is ruled that his petition and entry are void and have no legal effect.

[MARCELLUS libro nono digestorum. ] §29.2.75.prEx semisse Titius heres scriptus est: quadrantis bonorum possessionem per errorem petit.
[MARCELLUS, from the ninth book of the Digests.] Titius was appointed heir to one-half of the estate: by mistake, he petitioned for possession of the goods of one-fourth.
quaero, an nihil actum sit an uero perinde omnia seruanda sint, ac si quadrans nominatus non sit.
I ask whether nothing was accomplished, or whether indeed everything should be observed just as if 'one-fourth' had not been named.
respondit magis nihil actum esse, quemadmodum cum ex semisse scriptus heres ex quadrante per errorem adiit hereditatem.
He answered that rather nothing was accomplished, just as when an heir appointed to one-half, by mistake, enters upon the inheritance for one-fourth.

Notes

  1. §29.2.75.prex semisse — The preposition ex with the ablative is used to denote the share of the estate (reckoned in twelfths of an 'as'). 'Ex semisse' represents six-twelfths (one-half), and 'quadrans' represents three-twelfths (one-fourth).
  2. §29.2.75.prnihil actum sit — Subjunctive present in a double indirect question (an... an...). 'Nihil actum esse' (or 'sit') is a legal idiom meaning 'to have no legal effect' or 'to be void'.
  3. §29.2.75.prperinde omnia seruanda sint, ac si — A hypothetical comparison construction with 'perinde ac si' (just as if). The verb in the 'si' clause is in the subjunctive (non sit). It presents the alternative of whether the entire act should be preserved as if the mistaken term 'one-fourth' had not been mentioned at all, thus making it valid for the intended 'one-half'.

Cite this passage

Justinian I, The Digest of Justinian §29.2.75.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:29.2.75.pr

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