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Justinian I · The Digest of Justinian §30.1.36.pr-30.1.36.3

Legacies with Exclusion Clauses and Loss of the Object

Passage 4632 of 9271 · Latin

Summary

The text discusses the attribution of slaves with overlapping qualifications under legacies containing mutual exclusions, the equivalence of phrasing in joint legacies, and the exemption of the heir's liability if the object of the legacy dies before a demand is made.

[POMPONIUS libro sexto ad Sabinum. ] §30.1.36.pr'Titiae textores meos omnes, praeterquam quos hoc testamento alii legaui, lego.
[POMPONIUS, Book 6 on Sabinus.] 'To Titia, I bequeath all my weavers, except those whom I have bequeathed to someone else in this will.
Plotiae uernas meos omnes, praeterquam quos alii legaui, lego'. Cum essent quidam et uernae idem et textores, Labeo ait, quoniam nec quos Titiae textores non legauerit, aliter apparere possit, quam si cognitum fuerit, quos eorum Plotiae legauerit, nec quos Plotiae uernas non legauerit, possit, neutrius legato exceptos esse eos de quibus quaeritur et ideo communes ambobus esse: hoc enim iuris est et si neutrius legati nomine quicquam esset exceptum.
To Plotia, I bequeath all my home-born slaves, except those whom I have bequeathed to someone else.' Since there were certain slaves who were both home-born and weavers, Labeo says that, because it cannot otherwise appear which weavers he did not bequeath to Titia unless it is known which of them he bequeathed to Plotia, nor can it appear which home-born slaves he did not bequeath to Plotia, those in question are excluded from the legacy of neither, and therefore are common to both; for this is the rule of law even if nothing had been excepted under the name of either legacy.
§30.1.36.1Quod si hoc modo esset legatum 'textores omnes praeter uernas' et rursus 'uernas omnes praeter textores', qui et uerna et textor esset, neutri fuisse legatum.
But if the legacy had been made in this manner: 'all weavers except home-born slaves', and again, 'all home-born slaves except weavers', anyone who was both home-born and a weaver would have been bequeathed to neither.
§30.1.36.2Nihil distat, utrum ita legetur 'Titio et Maeuio' an ita Titio cum Maeuio': utrubique enim coniunctim legatum uidetur.
It makes no difference whether the legacy is made 'to Titius and Maevius' or 'to Titius along with Maevius'; for in both cases the legacy is deemed to be made jointly.
§30.1.36.3Si alteri Stichum heres dederit, quem duobus dare damnatus fuerat, et antequam interpellaretur ab altero Stichus mortuus est, heres non tenetur, quia nihil per eum factum intellegitur.
If the heir has delivered Stichus, whom he had been condemned to give to two persons, to one of them, and before he was sued by the other, Stichus died, the heir is not liable, because it is understood that nothing was done by his fault.

Notes

  1. 30.1.36.praliter apparere possit, quam si cognitum fuerit — The correlation 'aliter... quam si...' forms a conditional comparative construction meaning 'it cannot otherwise appear... unless...'. 'cognitum fuerit' is a future perfect indicative (or perfect subjunctive), showing that the determination of this condition must precede the outcome in the main clause.
  2. 30.1.36.pret si — Synonymous with 'etiamsi' (even if) introducing a concessive clause. Here it is construed with the pluperfect subjunctive 'esset exceptum' to express a counterfactual concession: 'even if nothing had been excepted under either legacy'.
  3. 30.1.36.1neutri fuisse legatum — An accusative with infinitive construction in indirect speech, with the subject pronoun 'eum' omitted. It depends either on the preceding 'Labeo ait' or is used to state a general legal opinion in indirect discourse.
  4. 30.1.36.3nihil per eum factum intellegitur — Literally 'it is understood that nothing was done through him (the heir)'. In Roman legal terminology, this is a standard expression to indicate the absence of fault (culpa) or personal responsibility on the part of the obligor, thus exempting him from liability.

Cite this passage

Justinian I, The Digest of Justinian §30.1.36.pr-30.1.36.3. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:30.1.36.pr-30.1.36.3

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