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Justinian I · The Digest of Justinian §30.1.43.pr-30.1.43.3

Bequests of Severable Additions and Third-Party Discretion

Passage 4639 of 9271 · Latin

Summary

It details the validity of legacies of items not belonging to a house, the husband's right to detach structures built in a dowry garden and bequeath them, legacies dependent on third-party will, and the legacy of a ransomed person to himself.

[IDEM libro uicesimo primo ad Sabinum. ] §30.1.43.prSenatus enim ea, quae non sunt aedium, legari permisit, haec autem mortis tempore aedium non fuerunt: heres ergo aestimationem praestabit.
[THE SAME, Book 21 on Sabinus.] For the Senate permitted the legacy of those things which do not belong to a house, and these things at the time of death did not belong to the house: therefore the heir shall pay the valuation.
sed si detraxerit ut praestiterit, poenis erit locus, quamuis ut non uendat, detraxit, sed ut exsoluat.
But if he detached them in order to perform the legacy, there will be room for penalties, even though he detached them not to sell, but to perform.
§30.1.43.1Marcellus etiam scribit, si maritus diaetam in uxoris hortis, quos in dotem acceperat, fecerit, posse eum haec detrahere, quae usui eius futura sint, sine mulieris tamen damno, nec ad hoc senatus consultum futurum impedimento.
Marcellus also writes that if a husband has built a suite of rooms in his wife's gardens, which he had received as a dowry, he can detach these things which are to be for his own use, yet without damage to the woman, and that the senatus consultum will not be an obstacle to this.
ergo si non est ei obfuturum, quo minus detrahat, dici oportebit posse eum haec legare, quae detrahere potest.
Therefore, if it is not going to stand in his way to prevent him from detaching them, it must be said that he can bequeath these things which he is able to detach.
§30.1.43.2Legatum in aliena uoluntate poni potest, in heredis non potest.
A legacy can be dependent on the will of a third party, but it cannot be dependent on that of the heir.
§30.1.43.3Qui ab hostibus redemptus est legari sibi poterit et proficiet legatum ad liberationem uinculi pignoris, quod in eo habuit qui redemit.
A person who has been ransomed from the enemy can be bequeathed to himself, and the legacy will avail for the release of the bond of pledge which he who ransomed him had over him.

Notes

  1. 30.1.43.praedium — The genitive plural of "aedes" (house), functioning here as a genitive of possession or property, meaning "belonging to the house" or "forming part of the house".
  2. 30.1.43.prut praestiterit — The perfect subjunctive in the purpose "ut" clause, which, relative to the future perfect "detraxerit" (or perfect "detraxit") in the main clause, indicates an action aimed at achieving a completed state of performance.
  3. 30.1.43.1quo minus detrahat — A "quo minus" clause expressing prevention or hindrance, depending on "obfuturum" (the future participle of "obsum", meaning to hinder or oppose).
  4. 30.1.43.3legari sibi — The subject of the passive infinitive "legari" is the subject of the preceding relative clause "qui" (the ransomed person), and "sibi" (dative) is the reflexive pronoun referring back to this subject. This structure indicates that the ransomed person himself is the object of the legacy in order to release him from the pledge-like bond held by the ransomer.

Cite this passage

Justinian I, The Digest of Justinian §30.1.43.pr-30.1.43.3. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:30.1.43.pr-30.1.43.3

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