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Justinian I · The Digest of Justinian §34.3.24.pr

Scope of Trust Release and Recovery of Paid Debt

Passage 5224 of 9271 · Latin

Summary

This fragment discusses a case where a testator requests an heir through a trust to release a debtor, explaining that the release applies only to the debt remaining at the opening of the will, whereas any collection made after the opening but before acceptance of the inheritance by an heir aware of the deceased's will constitutes constructive fraud and can be recovered.

[IDEM libro octauo responsorum. ] §34.3.24.prCum heres rogatur debitorem suum liberare, de eo tantum cogitatum uidetur, quod in obligatione manserit: itaque si quid ante tabulas apertas fuerit solutum, ad causam fideicommissi non pertinebit.
[THE SAME in the eighth book of Answers.] When an heir is requested to release his debtor, it is deemed that consideration was given only to that which remained in the obligation; therefore, if anything was paid before the opening of the will, it will not pertain to the matter of the trust.
quod autem post tabulas apertas ante aditam hereditatem ab eo, qui uoluntatem defuncti non ignorauit, fuerit exactum, dolo proximum erit ideoque repeti potest.
However, whatever was collected after the opening of the will and before the acceptance of the inheritance by one who was not unaware of the deceased's will, shall be tantamount to fraud and therefore can be recovered.

Notes

  1. §34.3.24.prde eo tantum cogitatum uidetur — The impersonal construction `cogitatum [esse] uidetur` ("it seems that consideration was given") takes the clause `quod... manserit` as its logical subject, representing a legal presumption of the testator's intent.
  2. §34.3.24.prante tabulas apertas — A noun-participle construction ("before the opening of the tablets") equivalent to the *ab urbe condita* construction. Similarly, the subsequent phrase `ante aditam hereditatem` means "before the acceptance of the inheritance."
  3. §34.3.24.prquod... fuerit exactum — A relative clause introduced by the relative pronoun `quod` (accusative, neuter, singular, with an omitted antecedent `id`), acting as the subject of the main clause. The verb `fuerit exactum` is future perfect passive (or a perfect passive variant).

Cite this passage

Justinian I, The Digest of Justinian §34.3.24.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:34.3.24.pr

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