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Justinian I · The Digest of Justinian §32.0.73.pr-32.0.73.5

Scope of Own Slaves: Pledged, Hired, and Deputy Slaves

Passage 4897 of 9271 · Latin

Summary

Ulpianus examines the scope of the term "one's own slaves" in a will, discussing whether it includes slaves subject to a usufruct, good-faith servants, pledged slaves, hired-out slaves, merchandise slaves, and deputy slaves (vicarii).

[ULPIANUS libro uicesimo ad Sabinum. ] §32.0.73.prSuos autem seruos uel ancillas eos accipimus, qui sunt pleno iure testantis: inter quos fructuarii non continebuntur.
[ULPIANUS, from his twentieth book on Sabinus.] Moreover, we understand "his own" male or female slaves to be those who belong to the testator by full right; among whom those subject to a usufruct will not be included.
§32.0.73.1Sed qui bona fide testatori seruiunt, suorum appellatione magis est ut contineantur, si modo suorum appellatione eos quos suorum numero habuit uoluit contineri. §32.0.73.2Eos uero, quos quis pignori hypothecaeue dedit, sine dubio inter suos legasse uidebitur debitor: creditor nequaquam.
But as for those who serve the testator in good faith, it is more fitting that they be included under the term "his own," provided that he wished those whom he held in the number of his own to be included under the term "his own." On the other hand, as for those whom anyone has given as a pledge or hypothec, the debtor will undoubtedly be deemed to have bequeathed them among his own, but the creditor by no means so.
§32.0.73.3Proinde si quis seruos habuit proprios, sed quorum operas locabat uel pistorias uel histrionicas uel alias similes, an seruorum appellatione etiam hos legasse uideatur? quod et praesumi oportet, nisi contraria uoluntas testatoris appareat.
Accordingly, if someone owned his own slaves, but was hiring out their services either for baking, acting, or other similar tasks, should he be deemed to have bequeathed these also under the term "slaves"? This indeed ought to be presumed, unless a contrary intention of the testator appears.
§32.0.73.4Eum, qui uenaliciariam uitam exercebat, puto suorum numero non facile contineri uelle eiusmodi mancipia, nisi euidens uoluntas fuit etiam de his sentientis: nam quos quis ideo comparauit, ut ilico distraheret, mercis magis loco quam suorum habuisse credendus est.
As for one who carried on the trade of a slave-dealer, I think that he did not easily wish slave-property of this kind to be included in the number of his own, unless there was a clear intention of the testator thinking also of them; for anyone who acquired them for the purpose of selling them immediately must be believed to have held them in the place of merchandise rather than of his own.
§32.0.73.5Uicarios autem seruorum suorum numero non contineri Pomponius libro quinto scribit.
But Pomponius writes in his fifth book that deputy slaves (vicarii) are not included in the number of one's own.

Notes

  1. 32.0.73.prfructuarii — While `fructuarius` generally refers to the person who holds a usufruct (usufructuary), here it is used in a passive sense to denote the slaves who are subject to a usufruct (`servi fructuarii`), indicating that such slaves, where the testator holds only ownership and another holds the usufruct, are excluded from "one's own."
  2. 32.0.73.1magis est ut contineantur — An impersonal construction `magis est ut` ("it is more fitting that...", "it is more likely that...") followed by the subjunctive `contineantur`, indicating a normative preference or interpretive tendency.
  3. 32.0.73.4sentientis — The genitive singular of the present participle `sentientis` (from `sentire`) modifies the implied `testatoris` (of the testator), meaning "the intention of the [testator] who is thinking / having in mind also these."
  4. 32.0.73.4Eum, qui uenaliciariam uitam exercebat — `Eum` stands as the accusative subject of the accusative-with-infinitive clause governed by `puto`. The structure involves a nested infinitive clause where `eiusmodi mancipia` is the subject of `contineri`, and the overall clause means "I think that he (eum) did not easily wish (uelle) such slaves (mancipia) to be included (contineri)."

Cite this passage

Justinian I, The Digest of Justinian §32.0.73.pr-32.0.73.5. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:32.0.73.pr-32.0.73.5

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