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Justinian I · The Digest of Justinian §31.0.68.pr

Gifts to a Wife and Restitution Under a Fideicommissum

Passage 4795 of 9271 · Latin

Summary

The text explains that gifts made by a husband to his wife during his lifetime are generally excluded from a fideicommissum, unless the husband explicitly charges his wife to restore them.

[PAULUS libro undecimo quaestionum. ] §31.0.68.prSequens quaestio est, an etiam quae uiuus per donationem in uxorem contulit in fideicommissi petitionem ueniant.
[PAULUS in the eleventh book of Questions.] The following question is whether things which the deceased while alive conferred upon his wife by way of donation also come into the claim of a fideicommissum.
respondi ea extra causam bonorum defuncti computari debere et propterea fideicommisso non contineri, quia ea habitura esset etiam alio herede exsistente.
I replied that those things ought to be calculated outside the estate of the deceased, and therefore are not contained in the fideicommissum, because she would have them even if another were heir.
plane nominatim maritus uxoris fidei committere potest, ut et ea restituat.
Of course, the husband can expressly commit to the faith of his wife that she restore those things as well.

Notes

  1. 31.0.68.prextra causam bonorum — meaning 'outside the legal basis of the estate.' Here, causa refers to the legal basis for calculating the total value of the estate. It indicates that property gifted during the lifetime does not constitute part of the deceased's active assets at the opening of succession, and therefore must be excluded from the basis for calculating the fideicommissum.
  2. 31.0.68.pralio herede exsistente — meaning 'even if another were heir.' An ablative absolute structure carrying a concessive nuance. It indicates that even in a situation where a third party other than the husband becomes the heir, the gift to the wife remains validly in her possession and is not automatically subject to the fideicommissum.

Cite this passage

Justinian I, The Digest of Justinian §31.0.68.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:31.0.68.pr

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