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Justinian I · The Digest of Justinian §34.2.7.pr

Scope of Legacy Described as My Property and Relevant Time

Passage 5166 of 9271 · Latin

Summary

Paulus discusses the principle that in a legacy using the phrase "my...", unless otherwise specified, only the property existing at the time of the making of the will is considered bequeathed, excluding future acquisitions.

[PAULUS libro octauo ad Plautium. ] §34.2.7.prSi ita esset legatum: 'uestem meam', 'argentum meum damnas esto dare', id legatum uidetur, quod testamenti tempore fuisset, quia praesens tempus semper intellegeretur, si aliud comprehensum non esset: nam cum dicit 'uestem meam', 'argentum meum', hac demonstratione 'meum' praesens, non futurum tempus ostendit.
[PAULUS, in his eighth book on Plautius.] If a legacy had been made in this way: "my clothing," "let [my heir] be under obligation to give my silver," that which existed at the time of the making of the will is understood to be bequeathed, because the present time would always be understood to be meant, if nothing else had been expressed. For when he says "my clothing," "my silver," by this designation "my" he indicates the present, not the future time.
idem est et si quis ita legauerit 'seruos meos'.
The same holds true even if someone has bequeathed in this way: "my slaves."

Notes

  1. §34.2.7.prdamnas esto — This is a traditional formula for a "legacy by condemnation" (legatum per damnationem), utilizing the future imperative third person singular. The subject (heres) is omitted but understood from the context as "let [the heir] be under obligation to..."
  2. §34.2.7.prtestamenti tempore — Meaning "at the time of the will." In Roman law, this points to the moment of the making of the will (testamenti tempore) rather than the time of the testator's death (mortis tempore) as the reference point for determining the scope of the specific items bequeathed (such as clothing or silver).
  3. §34.2.7.prsi aliud comprehensum non esset — A conditional clause in the pluperfect subjunctive. The verb comprehendere here means "to be included in words" or "to be explicitly expressed." Thus, it expresses the condition: "if some other meaning (such as including future acquisitions) had not been explicitly stated in the words of the will."

Cite this passage

Justinian I, The Digest of Justinian §34.2.7.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:34.2.7.pr

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