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Justinian I · The Digest of Justinian §34.3.30.pr

Validity of a Legacy Forbidding Centumviral Litigation

Passage 5231 of 9271 · Latin

Summary

The legacy instructing an heir not to pursue a trial before the centumviral court is valid only if the testator's opponent had a weak case, whereas if the opponent had a strong case, the legacy has no effect, not even with respect to the saved litigation expenses.

[IDEM libro decimo quaestionum. ] §34.3.30.prPetitor uel possessor damnauit heredem suum, ne centumuirale iudicium exerceat: de effectu legati quaeritur.
[THE SAME in the tenth book of Questions.] A plaintiff or a possessor ordered his heir not to pursue a trial before the centumviral court: the effect of this legacy is questioned.
et dictum ita demum utile uideri legatum esse, si malam causam aduersarius testatoris habuit, ut litigante herede uinci debuerit: tunc enim non tantum litis emolumentum, sed etiam sumptus heres legatario praestare cogitur.
And it is said that the legacy seems to be valid only if the opponent of the testator had a bad case, so that if the heir litigated, the opponent ought to have been defeated: for then the heir is compelled to perform for the legatee not only the advantage of the lawsuit, but also the expenses.
nam in bona causa nihil uidetur esse in legato nec propter sumptus, quod quidam existimauerunt.
For if the opponent had a good case, there seems to be nothing in the legacy, not even on account of the expenses, as some have thought.

Notes

  1. §34.3.30.prdamnauit heredem suum, ne centumuirale iudicium exerceat — The verb damnauit represents the formula of a legacy by condemnation (legatum per damnationem), which imposes an obligation on the heir and governs the clause with ne and the subjunctive exerceat, expressing the content of the obligation.
  2. §34.3.30.prlitigante herede — An ablative absolute consisting of the present participle litigante and the noun herede, which here expresses a conditional meaning ("if the heir litigated").
  3. §34.3.30.prnihil uidetur esse in legato nec propter sumptus — The conjunction nec following the negative nihil expresses an extension of the negation ("not even"). It indicates that the benefit of saved expenses (sumptus), which some jurists argued for, is not recognized as a valid substance of the legacy.

Cite this passage

Justinian I, The Digest of Justinian §34.3.30.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:34.3.30.pr

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