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Justinian I · The Digest of Justinian §30.1.11.pr

Trusts through a Dependent Son and the Duty of Restitution

Passage 4607 of 9271 · Latin

Summary

This section discusses the requirements for the validity of a trust in legacies to a dependent son or slave, the application of the Falcidian law to the father's obligation to restore the inheritance when his son is instituted heir, and the legal effect if the son predeceases the father.

[PAPINIANUS libro nono quaestionum. ] §30.1.11.prCum filio familias uel seruo alieno legatum uel hereditas datur, fidei committi patris uel domini potest ac tunc demum ex persona ipsorum fideicommissum uires capit, cum ipsis, per quos commodum hereditatis uel legati patri dominoue quaeritur, fideicommissum relinquitur.
[PAPINIANUS, Book 9 of Questions.] When a legacy or an inheritance is given to a son under paternal power or to another's slave, a trust can be committed to the good faith of the father or owner, and only then does the trust take effect by virtue of their own person, when the trust is left to those very persons through whom the benefit of the inheritance or legacy is acquired for the father or owner.
denique Iulianus non insuptili ratione motus patrem, cuius filius heres institutus est, extero, quidem habita ratione legis Falcidiae restituere hereditatem respondit, quoniam ex persona filii teneretur, ipsi uero filio non admissa Falcidia, quoniam ex persona sua sibi filius obligari non posset ac pater non ut heres, sed ut pater rogari uidetur.
Finally, Julianus, moved by an ingenious reason, answered that a father whose son has been instituted heir must restore the inheritance to a stranger, indeed taking into account the Falcidian law, since he would be bound by virtue of the person of his son; but to the son himself, without admitting the Falcidian law, since the son could not be obligated to himself by virtue of his own person, and the father is deemed to have been asked not as heir, but as father.
et ideo si filio rogatus sit pater post mortem suam, quod ad se peruenit ex legato uel hereditate filio relictis, restituere isque uiuo patre decedat, omnimodo patrem id retenturum, quoniam fideicommissum ex persona patris uires acceperit.
And therefore, if a father is asked to restore to his son, after his own death, what came to him from the legacy or inheritance left to the son, and the son dies while the father is still living, the father will retain it in any event, since the trust has taken effect by virtue of the person of the father.

Notes

  1. 30.1.11.prex persona ipsorum — The genitive pronoun `ipsorum` refers back to `filio familias uel seruo alieno` (the son under paternal power or the slave of another). `ex persona` (by virtue of the person of) indicates that the validity of the trust is grounded in their legal status.
  2. 30.1.11.prpatrem... restituere hereditatem respondit — An accusative with infinitive (AcI) construction introduced by `Iulianus... respondit`, where `patrem, cuius filius heres institutus est` is the subject. In contrast, the recipients of the restoration are parallelly compared with the datives `extero` (to a stranger) and `ipsi uero filio` (but to the son himself). In the latter clause, `restituere` is understood.
  3. 30.1.11.prsi filio rogatus sit pater... restituere isque uiuo patre decedat — The internal structure of the conditional clause (si-clause). `rogatus sit` is a passive verb with `pater` as its subject, taking the infinitive `restituere` as its complement. `filio` is the dative depending on `restituere` (to restore to the son). The enclitic conjunction `que` connects `is` (the son) as the subject of the new verb `decedat` (present subjunctive) to the conditional clause, while `uiuo patre` (the father being alive) is an ablative absolute.

Cite this passage

Justinian I, The Digest of Justinian §30.1.11.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:30.1.11.pr

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