Humanitext Reader

Justinian I · The Digest of Justinian §33.3.3.pr

Bequests of Land and Way to Multiple Persons or on Condition

Passage 4998 of 9271 · Latin

Summary

This section discusses the validity of bequests of an estate and a right of way to it, particularly in cases involving multiple legatees or conditional bequests, based on the indivisibility of servitudes.

[IDEM libro uicesimo nono digestorum. ] §33.3.3.prSi fundum Maeuio et ad eum uiam per alium fundum et eundem fundum sine uia Titio legasset, si uterque fundum uindicasset, sine uia legato fundum cessurum, quia neque adquiri per partem seruitus possit.
[THE SAME in the twenty-ninth book of the Digests.] If someone had bequeathed an estate to Maevius and a right of way to it through another's estate, and the same estate without the right of way to Titius, if both should claim the estate, the estate will yield to the legatee without the right of way, because a servitude cannot be acquired in part.
et si prius Maeuius fundum uindicaret altero deliberante, posse dubitari, an, si postea Titius omississet, uiae legatum saluum esset, et hoc magis uidebatur: quamquam si sub condicione quis fundum legasset, uiam pure, aut pro parte fundum pure, pro parte sub condicione et uiam sine condicione, si pendente ea legati dies cessisset, interiturum fore uiae legatum: ut responsum est, cum alteri ex uicinis, qui fundum communem habebant, uiam sub condicione, alteri pure legasset et pendente condicione decessisset, quia alterius legatarii persona impedimento esset, quo minus solidus fundus cum uia uindicaretur.
And if Maevius should first claim the estate while the other is deliberating, it can be doubted whether, if Titius afterwards rejected it, the bequest of the right of way would be preserved, and this seemed the more correct view. Nevertheless, if someone had bequeathed an estate conditionally and the right of way unconditionally, or a part of the estate unconditionally and a part conditionally, and the right of way without condition, if, while the condition was pending, the day of the bequest should yield, the bequest of the right of way will perish: as was answered in the case where someone had bequeathed a right of way conditionally to one of the neighbors who owned a common estate, and unconditionally to the other, and had died while the condition was pending, because the person of the other legatee would be an obstacle preventing the entire estate from being claimed along with the right of way.

Notes

  1. §33.3.3.prlegato — Taken as the dative of the perfect passive participle legatus ('the legatee', equivalent to legatario), indicating the person to whom the property yields (cedere). Although it could be construed as the ablative of the neuter noun legatum ('by bequest'), the interpretation as a dative is standard because the context implies that the estate yields to the legatee (though without the right of way).
  2. §33.3.3.prdies cessisset — The subjunctive pluperfect of the Roman legal technical expression 'dies cedit' (the day of the bequest yields / the right to the bequest vests). In a conditional bequest, it refers to the situation where the vesting day (dies) arrives (cedit), such as by the death of the testator, before the condition is fulfilled.
  3. §33.3.3.prhoc magis uidebatur — In contrast to the infinitive clause `posse dubitari, an...` (it could be doubted whether...), the content of the indirect question `an` (i.e., that the bequest of the right of way remains valid) is approved as the more correct view (magis uidebatur).
  4. §33.3.3.prquo minus — Introduced by the noun of hindrance `impedimento` (obstacle, dative) and accompanied by the subjunctive `uindicaretur`, expressing a negative purpose or result ('preventing ... from being claimed').

Cite this passage

Justinian I, The Digest of Justinian §33.3.3.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:33.3.3.pr

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