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Justinian I · The Digest of Justinian §33.2.19.pr

Bequest of Bare Ownership and Shared Usufruct

Passage 4971 of 9271 · Latin

Summary

This fragment explains the proper wording for a testator to bequeath bare ownership of land to one person and its usufruct to another, and the legal consequence of co-ownership if such precise language is omitted.

[IDEM libro singulari de heurematicis. ] §33.2.19.prSi alii fundum, alii usum fructum eiusdem fundi testator legauerit: si eo proposito fecit, ut alter nudam proprietatem haberet, errore labitur.
[THE SAME, On Inventions, Single Book.] If a testator has bequeathed a tract of land to one person, and the usufruct of the same land to another: if he did this with the intention that the former should have the bare ownership, he is in error.
nam detracto usu fructu proprietatem eum legare oportet eo modo: 'Titio fundum detracto usu fructu lego: uel Seio eiusdem fundi usum fructum heres dato'. quod nisi fecerit, usus fructus inter eos communicabitur, quod interdum plus ualet scriptura quam peractum sit.
For he ought to bequeath the ownership with the usufruct deducted in the following manner: "I bequeath the land to Titius with the usufruct deducted; or, let my heir give the usufruct of the same land to Seius." Unless he does this, the usufruct will be shared between them, because sometimes the written word has greater force than what was actually intended.

Notes

  1. §33.2.19.prdetracto usu fructu — An ablative absolute consisting of the noun ususfructus (usufruct) and the perfect participle of detrahere (to deduct, withdraw). It is a legal formula used to express the intention of bequeathing only the 'bare ownership' by explicitly excluding the usufruct from the bequest of the land.
  2. §33.2.19.prquod interdum — Here quod functions not as a relative pronoun, but as a causal conjunction (meaning 'because' or 'for'), explaining the reason why the usufruct is shared (the principle that the written words prevail over the actual intention).
  3. §33.2.19.prperactum sit — Subjunctive mood. In legal interpretation, it refers to 'what was actually intended' (id quod actum est), i.e., the true intention (voluntas) of the testator. Some manuscripts or editions read actum sit; in either case, it contrasts the 'written word' (scriptura) with the 'inner intention of the party.'

Cite this passage

Justinian I, The Digest of Justinian §33.2.19.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:33.2.19.pr

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