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Justinian I · The Digest of Justinian §30.1.109.pr-30.1.109.1

Confirmation of Spousal Gifts by Legacy and Alternative Trusts

Passage 4706 of 9271 · Latin

Summary

The text discusses the interpretation of validating husband-wife donations through a legacy, and the praetor's intervention when a land subject to an alternative trust is sold to a third party who then offers money instead.

[IDEM libro sexto quaestionum. ] §30.1.109.prSi quando quis uxori suae ea, quae uiuus donauerat uolgari modo, leget, non de aliis donationibus uideri eum sentire ait, quam de his quae iure ualiturae non sunt: alioquin et frustra legaturus sit atque si ita exprimat: 'quae uxori iure donauero' uel ita: 'quae uxori manumissionis causa donauero, ea ei lego': nam inutile legatum futurum est.
[THE SAME AUTHOR, in the sixth book of Questions.] If ever someone should bequeath to his wife those things which he had given during his lifetime in the common way, he says that he does not seem to mean any other donations than those which will not be legally valid; otherwise he would be bequeathing in vain, just as if he were to express it thus: "what I shall have lawfully given to my wife" or thus: "what I shall have given to my wife for the sake of manumission, those things I bequeath to her"; for the legacy will be useless.
§30.1.109.1Heres, cuius fidei commissum erat, ut mihi fundum aut centum daret, fundum Titio uendidit: cum electio ei relinquitur utrum malit dandi, ut tamen alterum solidum praestet, praetoris officio conuenire existimo, ut, si pecuniam Titius offerat, inhibeat fundi persecutionem.
An heir, to whose good faith it had been committed to give me a land or one hundred, sold the land to Titius. Since the choice of which he prefers to give is left to him, provided however that he perform one or the other in full, I think it is fitting for the office of the praetor that, if Titius offers the money, he should prevent the pursuit of the land.
ita enim eadem causa constitueretur, quae futura esset, si alienatus fundus non fuisset, quando etiam aduersus ipsum heredem officium praetoris siue arbitri tale esse deberet, ut, si fundus non praestaretur, neque pluris neque minoris quam centum aestimaretur.
For in this way the same condition would be established as would have existed if the land had not been alienated, since even against the heir himself the office of the praetor or of the arbitrator ought to be such that, if the land were not performed, it should be valued at neither more nor less than one hundred.

Notes

  1. 30.1.109.pruolgari modo — In Roman law, donations between husband and wife (donatio inter uirum et uxorem) are generally invalid. However, a donation made in the common way (uolgari modo) during lifetime can be validated posthumously by a legacy. On the other hand, donations that are valid from the beginning, such as those made for the sake of manumission, would be useless (inutile) to bequeath again. Thus, this rule interprets the legacy as referring only to the former, invalid class of donations.
  2. 30.1.109.1electio ei relinquitur utrum malit dandi — The genitive of the gerund dandi depends on the noun electio ("the election of giving"), with the indirect question utrum malit ("which he prefers") intercalated. Although dandi could theoretically be construed as the object of malit ("he prefers to give"), it is more natural to read them together as electio dandi, a standard legal phrase expressing the reservation of the choice of performance in alternative obligations.
  3. 30.1.109.1neque pluris neque minoris — These are genitives of value (genitiuus pretii) used with the passive verb aestimaretur to mean "to be valued at neither more nor less [than one hundred]." It indicates the standard of valuation when one of the alternative performances is not rendered.

Cite this passage

Justinian I, The Digest of Justinian §30.1.109.pr-30.1.109.1. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:30.1.109.pr-30.1.109.1

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