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Justinian I · The Digest of Justinian §32.0.3.pr-32.0.3.4

Trustee Benefit as a Requirement for Trusts

Passage 4823 of 9271 · Latin

Summary

Ulpian discusses through several cases the criteria for whether a trust (fideicommissum) can be validly charged. In particular, it is required that the trustee derives an actual advantage (commodum) from the legacy or other mortis causa dispositions.

[ULPIANUS libro primo fideicommissorum. ] §32.0.3.prSi mulier dotem stipulata fuerit et accepto tulit marito in hoc dotem, ut fideicommissum det, dicendum est fideicommissum deberi: percepisse enim aliquid a muliere uidetur.
[ULPIAN from the first book on trusts.] If a woman has stipulated for a dowry and has given a receipt to her husband for this dowry for the purpose of him giving a trust, it must be said that the trust is due; for he is deemed to have received something from the woman.
haec ita, si mortis causa donatura mulier marito fecit acceptum.
This is so, if the woman made the receipt to her husband intending to make a donation mortis causa.
sed et si mortis causa auxerit marito dotem uel in matrimonium eius mortis causa redierit, potest dici fideicommissum ab eo deberi.
But also if she has increased the dowry to her husband mortis causa, or has returned to marriage with him mortis causa, it can be said that the trust is due from him.
§32.0.3.1Iulianus scribit, si seruus mihi legatus sit eumque manumittere rogatus sim, fideicommissum a me relinqui non posse, scilicet si pure roget: nam si sub condicione uel in diem, propter fructum medii temporis posse me obligari nec Iulianus dubitaret.
Julian writes that if a slave is bequeathed to me and I am asked to manumit him, a trust cannot be left from me, that is, of course, if he asks unconditionally; for if it is under a condition or for a specific day, Julian would not doubt that I can be obligated because of the fruits of the intervening time.
§32.0.3.2Si rem quis debeat ex stipulatu ei cui rem legauerit, fidei committere eius non poterit, licet ex legato commodum sentire uideatur, quod dominium nanciscitur statim nec exspectat ex stipulatu actionem: fortassis quis dicat et sumptum litis, quem sustineret, si ex stipulatione litigaret, eum lucrari.
If anyone owes a thing by stipulation to someone to whom he has bequeathed the same thing, he cannot charge him with a trust, even though he seems to derive an advantage from the legacy in that he acquires ownership immediately and does not wait for the action on the stipulation; perhaps someone might say that he also gains the litigation expenses which he would have incurred if he had litigated under the stipulation.
sed nequaquam dicendum est huius fidei committi posse.
But it must by no means be said that a trust can be charged to his faith.
§32.0.3.3Sed si habenti tibi proprietatem usum fructum mortis causa cessero, potest dici fideicommittere me posse.
But if I should surrender the usufruct mortis causa to you who hold the ownership, it can be said that I can charge you with a trust.
nec quemquam moueat, quod usus fructus solet morte exstingui: nam medii potius temporis, quo uiuat qui donauit, commodum cogitemus.
Nor should anyone be disturbed by the fact that a usufruct is usually extinguished by death; for we should rather consider the benefit of the intervening time during which the donor lives.
§32.0.3.4Si autem pignus debitoris liberauero mortis causa et eius fidei commissero, non potest ualere fideicommissum.
If, however, I release the pledge of a debtor mortis causa and charge him with a trust, the trust cannot be valid.

Notes

  1. §32.0.3.praccepto tulit — Perfect tense of the legal term `accepto ferre` (to give a receipt, to release a debt). It takes the accusative `dotem` (dowry) and the dative `marito` (husband), referring to the act of formally extinguishing the husband's obligation to return the dowry.
  2. §32.0.3.1pure — The adverb `pure` (unconditionally, simply) refers to a legacy or request of trust made without any condition (condicio) or term (dies). It is contrasted with the subsequent phrases `sub condicione` (under a condition) and `in diem` (for a specific day).
  3. §32.0.3.2fidei committere eius non poterit — The phrase `fidei committere` (to commit to someone's faith, to charge with a trust) usually governs a dative, but in classical and juristic Latin, it can take the genitive of a personal pronoun `eius` (to commit to his faith).
  4. §32.0.3.3habenti tibi proprietatem — A dative participle phrase. The present participle `habenti` modifies `tibi` (dative) and takes the accusative `proprietatem` (bare ownership) as its object. It means "to you who already hold the ownership" and serves as the dative complement of the main verb of the clause, `cessero` (if I should surrender).

Cite this passage

Justinian I, The Digest of Justinian §32.0.3.pr-32.0.3.4. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:32.0.3.pr-32.0.3.4

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