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Justinian I · The Digest of Justinian §29.2.82.pr

Manumission or Alienation of an Incapable Master's Slave

Passage 4485 of 9271 · Latin

Summary

This section explains that if a slave of an incapable master is instituted as heir and is manumitted or alienated before entry without fraud on the law, the slave himself is admitted to the inheritance, and the same principle applies when the incapacity concerns only a portion.

[TERENTIUS CLEMENS libro sexto decimo ad legem Iuliam et Papiam. ] §29.2.82.prSi seruus eius qui capere non potest heres instituatur et antequam iussu domini adeat hereditatem, manumissus alienatusue sit et nihil in fraudem legis factum esset, ipse admittitur ad hereditatem.
[TERENTIUS CLEMENS, from the sixteenth book On the Lex Julia et Papia.] If a slave of one who cannot take is instituted as heir, and, before he enters upon the inheritance by order of his master, he is manumitted or alienated, and nothing has been done to defraud the law, he himself is admitted to the inheritance.
sed et si partem capere possit dominus eius, eadem dicenda sunt de parte, quam ille capere non potest: nihil enim interest, de uniuerso quaeratur quod capere non possit an de portione.
But also, if his master can take a part, the same must be said of the part which he cannot take; for it makes no difference whether the inquiry concerns the whole which he cannot take, or a portion.

Notes

  1. §29.2.82.prcapere — The verb capere is a technical legal term in this context (concerning the Lex Julia et Papia), meaning to "take" or "acquire" a testamentary benefit (such as an inheritance or legacy) with legal capacity (capacitas).
  2. §29.2.82.prfactum esset — While the other verbs in the conditional si-clause are in the present subjunctive (instituatur) or perfect subjunctive (sit), factum esset is in the pluperfect subjunctive because it specifies a past condition: that no action had previously been taken with the intent to evade the law.
  3. §29.2.82.prde uniuerso quaeratur... an — This is an indirect question clause dependent on the impersonal expression nihil interest ("it makes no difference"), where the introductory particle utrum of the disjunctive indirect question (utrum... an) is omitted. quaeratur is the present subjunctive passive used impersonally ("whether it is questioned").

Cite this passage

Justinian I, The Digest of Justinian §29.2.82.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:29.2.82.pr

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