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Justinian I · The Digest of Justinian §31.0.62.pr

Fideicommissum and Utilis Actio when an Appointed Slave Is Freed

Passage 4789 of 9271 · Latin

Summary

Discusses the liability of the master and the slave, and the application of an equitable action (utilis actio) against the person receiving the benefit, when a slave appointed as heir is manumitted before the inheritance is entered upon.

[LICINIUS RUFINUS libro quarto regularum. ] §31.0.62.prSi alienus seruus heres institutus fuerit, a domino eius fideicommissum relinqui potest.
[LICINIUS RUFINUS in the fourth book of Rules.] If another person's slave has been appointed heir, a trust can be left to be performed by his master.
sed ita hoc fideicommissum dominus praestare debet, si per seruum factus sit heres: quod si ante, quam iussu eius adiretur hereditas, seruus manumissus fuerit et suo arbitrio adierit hereditatem, dominus id debiturus non est, quia heres factus non est, nec seruus, quia rogatus non est.
But the master is obliged to perform this trust only if he has been made heir through the slave. But if, before the inheritance is entered upon by the master's order, the slave has been manumitted and has entered upon the inheritance of his own free will, the master is not to owe it, because he has not been made heir, nor is the slave, because he was not requested to perform it.
ita que utilis actio hoc casu competit, ut is, ad quem emolumentum hereditatis peruenerit, et fideicommissum praestare compellatur.
Therefore, an equitable action (utilis actio) lies in this case, so that he to whom the benefit of the inheritance has come may also be compelled to perform the trust.

Notes

  1. §31.0.62.prante, quam ... adiretur — The conjunction antequam is separated (tmesis) into ante and quam. The imperfect subjunctive adiretur is used here to indicate a prospective or anticipated action that was forestalled or did not occur under the master's authority.
  2. §31.0.62.prnec seruus, quia rogatus non est — The phrase id debiturus est is omitted after nec seruus. The verb rogatus (from rogare) is a technical term used for the person requested (charged) to perform a trust (fideicommissum). Since the slave himself was not requested in the will, he is not liable under strict civil law.
  3. §31.0.62.prutilis actio — Under strict civil law, neither the master (who did not become heir) nor the slave (who was not requested) would be liable to perform the trust. To prevent an unjust benefit, the praetor grants an "equitable action" (utilis actio) against the person who actually received the benefit of the inheritance.

Cite this passage

Justinian I, The Digest of Justinian §31.0.62.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:31.0.62.pr

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