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Justinian I · The Digest of Justinian §31.0.64.pr

Conjecturing Testator's Intent and Reciprocal Substitution

Passage 4791 of 9271 · Latin

Summary

Papinian cites a rescript of the emperors Marcus Aurelius and Commodus, which ruled that a mutually omitted substitution in a trust should be deemed valid based on the testator's intent shown in a secondary document, explaining that in trust cases, the search for the testator's precatory intention allows for conjecture.

[PAPINIANUS libro quinto decimo quaestionum. ] §31.0.64.prCum proponebatur in scriptura fideicommissi, quod pluribus sub condicione fuerat relictum, per errorem omissam mutuam substitutionem, quam testator in secundis tabulis, cum eosdem substitueret, expressit: diui Marcus et Commodus imperatores rescripserunt uoluntatem manifestam uideri mutuae factae substitutionis.
[PAPINIANUS in the fifteenth book of Questions.] When it was presented that in the writing of a trust, concerning what had been left to several persons under a condition, a mutual substitution had been omitted by mistake, which the testator had expressed in his second tablets when substituting the same persons: the deified emperors Marcus and Commodus replied by rescript that an apparent intention for a mutual substitution to have been made seemed to exist.
etenim in causa fideicommissi utcumque precaria uoluntas quaereretur, coniectura potuit admitti.
For in a case of a trust, where an precatory intention is sought in whatever way, conjecture could be admitted.

Notes

  1. §31.0.64.promissam mutuam substitutionem — This is an accusative with infinitive (A.C.I.) construction with the infinitive esse omitted, acting as the subject or complement of the verb proponebatur. The insertion of the relative clause quod ... relictum complicates the structure, but it establishes the premise: 'when it was presented that a mutual substitution had been omitted.'
  2. §31.0.64.prprecaria uoluntas — An expression reflecting the historical origin of trusts (fideicommissum), which originally relied on moral duty and the 'entreaty' (preces) of the trustee. It explains that unlike the strict formal testaments of civil law, the 'precatory intention' itself is widely sought, thus allowing for relief through conjecture.
  3. §31.0.64.prmutuae factae substitutionis — An objective genitive (or genitive of definition) modifying uoluntatem. It refers to the 'clear intention for a mutual substitution to have been made,' although it was in fact omitted in the writing.

Cite this passage

Justinian I, The Digest of Justinian §31.0.64.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:31.0.64.pr

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