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Justinian I · The Digest of Justinian §33.2.17.pr

Restitution and Set-off of Fruits from Unperformed Bequests

Passage 4969 of 9271 · Latin

Summary

In a case where a municipality received income from bequeathed estates but failed to hold the designated games for four years, it is questioned whether the income should be restored to the heirs or offset against other bequests; the jurist responds that fruits taken against the heirs' will must be restored, and unexpended funds must be set off against other debts.

[SCAEUOLA libro tertio responsorum. ] §33.2.17.prQuidam praedia rei publicae legauit, de quorum reditu quotannis ludos edi uoluit, et adiecit: 'quae legata peto, decuriones, et rogo, ne in aliam speciem aut alios usus conuertere uelitis'. res publica per quadriennium continuum ludos non edidit: quaero, an reditus, quos quadriennio res publica percepit, heredibus restituere debeat uel compensare in aliam speciem legati ex eodem testamento.
[SCAEUOLA, Opinions, Book III.] A certain person bequeathed estates to a municipality, from the income of which he wished games to be presented annually, and added: 'I request these bequests, decurions, and ask that you do not wish to convert them to another form or other uses.' The municipality did not present games for four consecutive years: I ask whether it ought to restore to the heirs the income which the municipality collected during the four years, or set it off against another kind of bequest from the same testament.
respondit et inuitis heredibus possessione adprehensa perceptos fructus restituendos esse et non erogatum secundum defuncti uoluntatem in alia quae deberentur compensari.
He replied that both the fruits collected after possession was taken against the will of the heirs must be restored, and what was not expended in accordance with the will of the deceased must be set off against other things which were owed.

Notes

  1. §33.2.17.prinuitis heredibus possessione adprehensa — Two independent ablatives absolute are juxtaposed here. 'inuitis heredibus' (noun + adjective) means 'against the will of the heirs', and 'possessione adprehensa' (noun + participle) means 'possession having been taken'. Together they describe the situation where the municipality took possession of the property without the consent of the heirs.
  2. §33.2.17.prnon erogatum — The neuter singular perfect passive participle of 'erogare' (to expend), used substantively to mean 'what was not expended' or 'the unexpended sum'. It serves as the subject accusative of the subsequent infinitive clause.
  3. §33.2.17.prcompensari — Present passive infinitive. In parallel with the preceding gerundive construction 'restituendos esse', it carries the sense of obligation ('ought to be set off'). This is understood either by supplying the governing verb 'debere' from the question's 'debeat' or by treating it as shorthand for 'compensandum esse'.

Cite this passage

Justinian I, The Digest of Justinian §33.2.17.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:33.2.17.pr

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