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Justinian I · The Digest of Justinian §34.2.33.pr

Testator's Habit and Intent in the Legacy of Clothing

Passage 5193 of 9271 · Latin

Summary

It is argued that in distinguishing between a man's garment and clothing, the subjective intention and habits of the testator must be prioritized over objective classification, illustrated by the example of a senator who wore women's dinner-dresses.

[POMPONIUS libro quarto ad Quintum Mucium. ] §34.2.33.prInter uestem uirilem et uestimenta uirilia nihil interest: sed difficultatem facit mens legantis, si et ipse solitus fuerit uti quadam ueste, quae etiam mulieribus conueniens est.
[POMPONIUS, in the fourth book of his commentary on Quintus Mucius.] There is no difference between a man's garment and man's clothing; but the intention of the legator creates a difficulty, if he himself was also accustomed to use a certain garment which is also suitable for women.
itaque ante omnia dicendum est eam legatam esse, de qua senserit testator, non quae re uera aut muliebris aut uirilis sit.
Therefore, before all things, it must be said that that garment was bequeathed which the testator had intended, and not that which is in fact either for a woman or for a man.
nam et Quintus Titius ait scire se quendam senatorem muliebribus cenatoriis uti solitum, qui si legaret muliebrem uestem, non uideretur de ea sensisse, qua ipse quasi uirili utebatur.
For Quintus Titius also says that he knows that a certain senator was accustomed to use women's dinner-dresses; and if this senator were to bequeath a woman's garment, he would not be deemed to have intended that garment which he himself used as if it were for a man.

Notes

  1. 34.2.33.pream legatam esse, de qua senserit testator, non quae re uera aut muliebris aut uirilis sit — An accusative with infinitive construction governed by the impersonal gerundive of obligation dicendum est. eam is the subject accusative of the passive infinitive legatam esse. After non, the phrase eam legatam esse is understood as omitted, contrasting the relative clause de qua... (what the testator intended) with quae... (what is in fact for a woman or a man). The subjunctives senserit and sit are used in relative clauses that express a subjective or generic characteristic, or due to the subordinate nature of the clause in indirect discourse.
  2. 34.2.33.prscire se quendam senatorem muliebribus cenatoriis uti solitum — A nested accusative with infinitive (AcI) construction. The main verb ait governs the first AcI clause scire se ('that he knows'), and the infinitive scire in turn governs the second AcI clause quendam senatorem ... solitum [esse] ('that a certain senator was accustomed'). The infinitive esse is omitted after solitum. uti is the present infinitive of the deponent verb utor, governing the ablative muliebribus cenatoriis.
  3. 34.2.33.prqui si legaret muliebrem uestem, non uideretur de ea sensisse — The relative pronoun qui at the beginning of the sentence is a connecting relative (relativus connectionis), referring back to quendam senatorem. non uideretur is a personal construction of the verb uideri ('to seem'), with qui as its subject, meaning 'he would not seem to have intended' (rather than an impersonal 'it would not seem that he intended'). si legaret is in the imperfect subjunctive, representing a counterfactual condition. ea in de ea is the antecedent of the following relative clause introduced by qua.

Cite this passage

Justinian I, The Digest of Justinian §34.2.33.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:34.2.33.pr

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