Justinian I · The Digest of Justinian §34.3.6.pr-34.3.6.1

Scope of Father's Action for Release of an Emancipated Son

Passage 5206 of 9271 · Latin

Summary

The text discusses the scope of the action a father can bring based on a legacy regarding the release of an emancipated son's debt. Javolenus argues that the action should not be extended for the son's benefit beyond the limit of the father's own release from liability.

[IAUOLENUS libro sexto epistularum. ] §34.3.6.prPost emancipationem uero filii eatenus pater actionem habebit, quatenus aliquid ex peculio aut in rem uerso praestaturus est: id enim legatorum nomine ad patrem pertinebit, quod eius intererit.

[JAVOLENUS in the sixth book of letters.] But after the emancipation of the son, the father will have an action only to the extent that he is to perform anything from the peculium or from what has been turned to his own profit; for that which concerns his interest will belong to the father under the name of legacies.

§34.3.6.1Illud quaeri potest, an eo quoque nomine pater ex testamento agere possit, ut etiam filius actione liberetur.

It can be asked whether the father can also sue under the testament on this account, so that the son may also be released from the action.

quibusdam eo usque extendi actionem placebat, quia patris interesse uideatur, si peculium filio post emancipationem concessisset, integrum ius¹ eius permanere.

It pleased some that the action should be extended that far, because it seems to concern the father's interest that, if he had granted the peculium to the son after emancipation, the son's right should remain unimpaired.

ego contra sentio: nihil quicquam amplius patri praestandum ex eiusmodi scriptura testamenti puto, quam ut nihil ex eo, quod praestaturus heredi fuerit, praestet.

I hold the contrary opinion; I think that nothing more whatever should be performed to the father from such a wording of a testament than that he should perform nothing of that which he would have had to perform to the heir.

Notes

34.3.6.1patris interesse ... integrum ius eius permanere — This is a construction of the impersonal verb "interesse." The person concerned is expressed by the genitive "patris" (the father's), and the subject of interest is represented by the accusative with infinitive clause "integrum ius eius permanere" (that his right should remain unimpaired). Here, the genitive pronoun "eius" refers to the immediately preceding "filio" (the son), as distinct from the father himself ("patris").
34.3.6.1nihil quicquam amplius patri praestandum ex eiusmodi scriptura testamenti puto, quam ut nihil ex eo, quod praestaturus heredi fuerit, praestet — "nihil quicquam amplius ... quam ut..." is a restrictive expression using a comparative, meaning "nothing more... than that...". "praestaturus fuerit" is a periphrastic conjugation consisting of the future participle and subjunctive perfect, representing an obligation "which he would have had to perform to the heir" from a past perspective (in the absence of the legacy). The overall structure states that the benefit the father should receive from the testament is restricted to his own release from liability (a passive benefit), and does not extend to an active right to demand the release of his son.

Cite this passage

Justinian I, The Digest of Justinian §34.3.6.pr-34.3.6.1. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:34.3.6.pr-34.3.6.1

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