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Justinian I · The Digest of Justinian §33.2.14.pr

Separate Usufructs to Two Persons and Valuation Deficits

Passage 4966 of 9271 · Latin

Summary

Celsus decides that if an heir, ordered to grant separate usufructs to two individuals, permits them to enjoy it jointly, he is liable to both if the testator intended each to have the entirety, and must compensate the deficit to each by monetary valuation.

[CELSUS libro octauo decimo digestorum. ] §33.2.14.prDuos separatim uti frui sinere damnatus heres communiter uti frui passus est: quaerebatur, an utrique ex testamento teneretur.
[CELSUS, Digest, Book XVIII.] An heir who was ordered to allow two persons separately to enjoy a usufruct permitted them to enjoy it jointly. The question arose whether he was liable to both under the will.
dixi teneri, si testator utrumque solidum habere uoluit: nam ipsius onus est, ut solidum singulis legatum praestaret: qua parte igitur alterum uti frui sineret heres, ea parte eum non sinere alterum uti frui, ideoque per aestimationem unicuique quod deest replere debet.
I replied that he was liable, if the testator intended each of them to have the entirety; for it is the heir's own burden to perform the bequest in its entirety to each. Therefore, in whatever part the heir allowed one to enjoy the usufruct, in that part he did not allow the other to enjoy it, and consequently he must make up to each by monetary valuation what is lacking.

Notes

  1. §33.2.14.prDuos separatim uti frui sinere damnatus heres — damnatus is a perfect passive participle modifying heres, expressing an obligation imposed by a legacy (legatum per damnationem), and taking the infinitive sinere to specify the obligation. This is followed by an accusative with infinitive construction acting as the object of sinere, with duos as the subject and uti frui as the infinitive.
  2. §33.2.14.prdixi teneri — An accusative with infinitive construction in indirect speech introduced by dixi, in which the subject pronoun eum (referring to the heir, heres) is omitted.
  3. §33.2.14.prqua parte igitur alterum uti frui sineret heres, ea parte eum non sinere alterum uti frui — A correlative structure of qua parte ... ea parte ... ('in which part ... in that part ...'). The phrase eum non sinere is an accusative with infinitive in indirect speech dependent on dixi, explaining that under joint enjoyment, to the extent the heir allows one to enjoy the usufruct, he fails to allow the other to enjoy that portion as a whole.

Cite this passage

Justinian I, The Digest of Justinian §33.2.14.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:33.2.14.pr

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