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Justinian I · The Digest of Justinian §33.3.6.pr

Personal Nature and Non-transferability of a Right of Way

Passage 5001 of 9271 · Latin

Summary

Discusses a right of passage bequeathed by a father to his daughter, explaining that it is a personal right which extends to her husband but does not constitute a full praedial servitude, thus preventing it from passing to her external heirs.

[IDEM libro septimo responsorum. ] §33.3.6.prPater filiae domum legauit eique per domus hereditarias ius transeundi praestari uoluit.
[THE SAME, in the seventh book of Opinions.] A father bequeathed a house to his daughter and willed that a right of passage through the houses of the inheritance be provided to her.
si filia domum suam habitet, uiro quoque ius transeundi praestabitur: alioquin filiae praestari non uidebitur.
If the daughter should reside in her house, the right of passage shall also be provided to her husband; otherwise, it will not seem to be provided to the daughter.
quod si quis non usum transeundi personae datum, sed legatum seruitutis esse plenum intellegat, tantundem iuris ad heredem quoque transmittetur: quod hic nequaquam admittendum est, ne, quod affectu filiae datum est, hoc et ad exteros eius heredes transire uideatur.
But if anyone should understand this to be not a personal use of passage given to a person, but a full legacy of a servitude, just as much right will also be transmitted to her heir; which is by no means to be admitted here, lest what was given out of affection for the daughter should also seem to pass to her outside heirs.

Notes

  1. §33.3.6.prdomus hereditarias — domus is the accusative plural of the fourth declension feminine noun. It refers to the multiple houses belonging to the inheritance (estate of the father) and functions as the object of the preposition per.
  2. §33.3.6.pralioquin filiae praestari non uidebitur — alioquin (otherwise) refers to the case where the condition 'the right is also granted to the husband' is not met. If the husband is excluded, the daughter cannot practically enjoy the right while living there, meaning that legally 'it will not be deemed (uidebitur) to be provided to her.'
  3. §33.3.6.prnon usum transeundi personae datum, sed legatum seruitutis esse plenum — Accusative with infinitive clause dependent on the subjunctive verb intellegat. The first part non usum ... datum [esse] consists of the accusative usum (subject) and the participle datum (with esse implied), contrasted with sed legatum ... esse plenum. It distinguishes a personal use granted to an individual (usum personae datum) from a full praedial servitude (legatum seruitutis plenum) attached to the property.

Cite this passage

Justinian I, The Digest of Justinian §33.3.6.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:33.3.6.pr

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