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Justinian I · The Digest of Justinian §34.5.8.pr

Gifts between Spouses upon Prior or Simultaneous Death

Passage 5272 of 9271 · Latin

Summary

This section rules on the validity and ownership of a donation between husband and wife, distinguishing between the case where the donee dies first and the case where both parties die simultaneously.

[PAULUS libro secundo sententiarum. ] §34.5.8.prSi inter uirum et uxorem donatio facta fuerit, priore defuncto cui donatum est ad eum res redit qui donauerat: quod si simul tam is cui donatum est quam is qui donauerit, quaestionis decidendae gratia magis placuit ualere donationem, eo maxime, quod donator non superuiuat, qui rem condicere possit.
[PAULUS, in the second book of Opinions.] If a donation has been made between husband and wife, and the one to whom it was donated dies first, the property returns to the one who had made the donation; but if both the one to whom it was donated and the one who made the donation [die] at the same time, for the sake of deciding the question, it has been preferred that the donation is valid, especially for this reason, that the donor, who could claim the property back, does not survive.

Notes

  1. §34.5.8.prpriore defuncto — An ablative absolute construction with the comparative `priore` ('earlier' or 'first'), meaning 'having died first (relative to the other)'. The logical subject is defined by the following relative clause `cui donatum est` ('the one to whom the donation was made').
  2. §34.5.8.prquod si simul — An ellipsis of a verb meaning 'to die' (such as `defuncti fuerint` or `obierint`) is understood after `simul`, corresponding to `defuncto` in the preceding sentence.
  3. §34.5.8.prqui rem condicere possit — The verb `possit` in the relative clause is in the subjunctive (of characteristic or cause). The verb `condicere` refers to the specific legal action of claiming the return of property (bringing a *condictio*) when a gift between spouses became void due to the prior death of the donee.

Cite this passage

Justinian I, The Digest of Justinian §34.5.8.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:34.5.8.pr

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