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Justinian I · The Digest of Justinian §30.1.103.pr

Tacit Trusts for Disqualified Persons and Evasion of Law

Passage 4699 of 9271 · Latin

Summary

This section rules that in tacit trusts, binding oneself via a private guarantee or chirograph to perform a trust for an legally disqualified person, rather than via a will or codicil, is deemed an evasion of the law.

[IDEM libro octagesimo tertio digestorum. ] §30.1.103.prIn tacitis fideicommissis fraus legi fieri uidetur, quotiens quis neque testamento neque codicillis rogaretur, sed domestica cautione uel chirographo obligaret se ad praestandum fideicommissum ei qui capere non potest.
[THE SAME, from the eighty-third book of the Digests.] tacit trusts, evasion of the law is deemed to occur whenever a person is requested neither by a will nor by codicils, but binds himself by a domestic guarantee or a chirograph to perform a trust for someone who is incapable of taking.

Notes

  1. §30.1.103.prfraus legi fieri uidetur — The noun fraus combined with the dative legi means "evasion of the law" (fraud upon the law). Combined with the passive infinitive fieri ("to be committed") and uidetur ("is deemed/appears"), it means "evasion of the law is deemed to occur." This refers to circumventing statutory restrictions through private arrangements.
  2. §30.1.103.prquotiens ... rogaretur ... obligaret — The subjunctive imperfect verbs rogaretur and obligaret are coordinated within the temporal clause introduced by the conjunction quotiens ("whenever"). This usage expresses a general or hypothetical condition in legal interpretation ("whenever such a situation should arise") rather than a single specific factual event.
  3. §30.1.103.prcapere — A technical term in Roman law meaning to "take" or "acquire" a legal benefit under a will or trust. The relative clause qui capere non potest refers to someone who is legally incapable of taking (i.e., lacks the capacity to receive a legacy due to legal restrictions).

Cite this passage

Justinian I, The Digest of Justinian §30.1.103.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:30.1.103.pr

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