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Justinian I · The Digest of Justinian §34.2.39.pr-34.2.39.2

Legacy of Ornaments to a Wife and Silver in One's House

Passage 5199 of 9271 · Latin

Summary

The passage discusses the opinions of Labeo and other jurists regarding the scope of a legacy of women's ornaments to a wife, and how to interpret the location-based description of legacy silver items.

[IAUOLENUS libro secundo ex posterioribus Labeonis. ] §34.2.39.prSi uxori mundus muliebris legatus esset, ea tantummodo deberi Ofilius Labeo responderunt, quae ex his tradita utendi causa uxoris uiro fuissent: aliter enim interpretantibus summam fore captionem, si uascularius aut faber argentarius uxori ita legasset.
[JAVOLENUS, in the second book from the posthumous works of Labeo.] If women's ornaments were bequeathed to a wife, Ofilius and Labeo replied that only those of them were due which had been delivered by the husband for the wife's use; for to those who interpret otherwise, there would be the greatest disadvantage if a vessel-maker or a silversmith had so bequeathed to his wife.
§34.2.39.1Cum ita legatum esset: 'argentum, quod domo mea erit cum moriar', Ofilius nec quod depositum a se nec quod commodatum reliquisset argentum legatum uideri respondit.
When there was a legacy in these terms: "the silver which shall be in my house when I die", Ofilius replied that neither the silver which he had deposited nor that which he had lent was to be seen as bequeathed.
idem Cascellius de commodato.
Cascellius held the same opinion regarding what was lent.
Labeo, quod depositum esset, ita deberi, si praesentis custodiae causa, non perpetuae ueluti thensauro depositum esset, quia illa uerba 'quod domo mea erit' sic accipi debere 'esse solebat': et hoc probo.
Labeo replied that what had been deposited was due only if it had been deposited for the sake of temporary custody, not for permanent custody as in a treasure-house, because those words "which shall be in my house" ought to be understood as "was accustomed to be"; and I approve of this.
§34.2.39.2Ateius Seruium respondisse scribit, cui argentum, quod in Tusculano fundo cum moreretur habuisset, legatum esset, et quod antequam moreretur ex urbe in Tusculanum iussu testatoris translatum esset, deberi: contra fore, si iniussu translatum esset.
Ateius writes that Servius replied that to a person to whom "the silver which he should have on his Tusculan estate when he died" had been bequeathed, there was also due that which, before he died, had been moved from the city to the Tusculan estate by order of the testator; but it would be otherwise if it had been moved without his order.

Notes

  1. §34.2.39.pruiro — `uiro` in `tradita ... uiro fuissent` functions as the agent of the passive participle `tradita` (either as an ablative or dative of agent), indicating that the items were delivered by the husband for the wife's use.
  2. §34.2.39.1esse solebat — Labeo interprets the future tense `erit` ("shall be") in the will as referring to a customary state of being there (`esse solebat`, "was accustomed to be") rather than mere physical presence at the moment of death, distinguishing temporary deposits from permanent ones.
  3. §34.2.39.2cui ... deberi — The relative pronoun `cui` (dative) at the beginning introduces the person to whom the legacy is due, which is governed by the infinitive `deberi` in indirect speech. The subject of `deberi` is the clause `quod ... translatum esset` (that which had been moved).

Cite this passage

Justinian I, The Digest of Justinian §34.2.39.pr-34.2.39.2. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:34.2.39.pr-34.2.39.2

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