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Justinian I · The Digest of Justinian §33.5.13.pr-33.5.13.1

Application of the Catonian Rule and Compulsion to Choose

Passage 5032 of 9271 · Latin

Summary

Paulus discusses whether a bequest of the choice of a slave and a subsequent bequest to a slave collide with the Catonian rule, distinguishing between voluntary and necessary heirs, and examines whether the buyer of an inheritance can compel a legatee to make a choice.

[PAULUS libro octauo ad Plautium. ] §33.5.13.prSi optio serui data mihi fuerit et Sticho aliquid testator sine libertate legasset, tunc sequens legatum consistit, cum tota familia ad unum, id est Stichum recciderit, ut quasi pure legato utiliter sit legatum.
[PAULUS, Book VIII on Plautius.] If the choice of a slave has been given to me, and the testator had bequeathed something to Stichus without freedom, then the subsequent bequest stands when the entire household of slaves has been reduced to one, that is, Stichus, so that it is validly bequeathed as if it were an unconditional bequest.
nec aduersatur Catoniana, si uoluntarius heres institutus sit, quia potest ante aditam hereditatem, etiamsi statim decesserit, familia minui: quod si necessarius heres institutus sit, sequens legatum propter Catonianam inutile est.
The Catonian rule is not opposed to this if a voluntary heir has been appointed, because before the inheritance is entered upon, even if the testator dies immediately, the household of slaves can be reduced; but if a necessary heir has been appointed, the subsequent bequest is void on account of the Catonian rule.
§33.5.13.1Pomponius scribit emptore hereditatis postulante, ut is, cui serui optio legata sit, optet, uidendum esse, an praetor ut id faciat cogere debeat legatarium, quemadmodum si heres institutus id postularet, quia potest per heredem id emptor consequi: et quare non possit, non uideo.
Pomponius writes that when the buyer of an inheritance demands that the person to whom the choice of a slave was bequeathed should make the choice, it must be considered whether the praetor ought to compel the legatee to do so, just as if the appointed heir demanded it, because the buyer can attain this through the heir; and I do not see why it should not be possible.

Notes

  1. §33.5.13.prCatoniana — Refers to the 'Catonian rule' (Regula Catoniana), according to which a bequest that would have been invalid if the testator had died immediately after making the will cannot become valid even if the cause of invalidity is removed at the time of actual death. In the case of a voluntary heir (uoluntarius heres), there is a gap between death and entry (aditio) during which the condition (reduction of slaves to Stichus) can be fulfilled, avoiding the rule. However, with a necessary heir (necessarius heres), who succeeds automatically at death, the rule applies and renders the subsequent bequest void.
  2. §33.5.13.1uidendum esse — Part of the accusative with infinitive (A.C.I.) construction introduced by Pomponius scribit. It is an impersonal gerundive construction where the indirect question clause 'an praetor ... cogere debeat' functions as the logical subject.

Cite this passage

Justinian I, The Digest of Justinian §33.5.13.pr-33.5.13.1. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:33.5.13.pr-33.5.13.1

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