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Justinian I · The Digest of Justinian §34.8.1.pr

Invalidity of Self-Written Provisions and Substitutes

Passage 5301 of 9271 · Latin

Summary

The passage discusses the legal effect of writing an inheritance or a legacy for oneself, including cases with a substitute, concluding that such a provision is treated as if it had never been written, thereby validating the right of the substitute based on senatorial policy.

[IULIANUS libro septuagesimo octauo digestorum. ] §34.8.1.prSi quis hereditatem uel legatum sibi adscripserit, quaeritur, an hereditas uel legatum pro non scripto habeatur.
[JULIANUS in the seventy-eighth book of the Digests.] If anyone has written down an inheritance or a legacy for himself, the question is raised whether the inheritance or the legacy is considered as not written.
et quid, si substitutum habeat huiusmodi institutio? respondit: pars hereditatis, de qua me consuluisti, ad substitutum pertinet: nam senatus cum poenas legis Corneliae constitueret aduersus eum, qui sibi hereditatem uel legatum scripsisset, eodem modo improbasse uidetur, quo improbatae sunt illae: 'qua ex parte me Titius heredem scriptum in tabulis suis recitauerit, ex ea parte heres esto', ut perinde haberentur, ac si insertae testamento non fuissent.
And what if an institution of this kind has a substitute? He answered: The share of the inheritance about which you consulted me belongs to the substitute; for when the Senate established the penalties of the Lex Cornelia against him who had written an inheritance or a legacy for himself, it seems to have disapproved of them in the same manner as those provisions were disapproved: "In whatever share Titius shall have read me out as written heir in his tablets, in that share let him be heir," so that they should be regarded just as if they had not been inserted in the testament.

Notes

  1. §34.8.1.prpro non scripto — "as not written". The preposition `pro` takes the ablative to express estimation or fiction, meaning "regarded as" or "as equivalent to".
  2. §34.8.1.pret quid, si — "And what if...". A common elliptical expression in legal texts, where a verb such as `fiat` or `iuris sit` ("what would be the legal status") is understood after `quid`.
  3. §34.8.1.primprobasse uidetur — "seems to have disapproved". `uidetur` is used in a personal construction (nominative with infinitive), where the subject is the main clause's subject `senatus`.
  4. §34.8.1.prqua ex parte me Titius heredem scriptum in tabulis suis recitauerit, ex ea parte heres esto — A structure where the antecedent `pars` of the relative `qua` is attracted into the relative clause as the noun `parte` (prolepsis), and is subsequently picked up by the demonstrative phrase `ex ea parte`.
  5. §34.8.1.prut perinde haberentur, ac si ... non fuissent — `ut` is a conjunction introducing a clause of result. The comparison phrase `perinde ac si` (just as if) represents a contrary-to-fact condition, which requires the subjunctive pluperfect `fuissent` in accordance with the sequence of tenses after past main verbs.

Cite this passage

Justinian I, The Digest of Justinian §34.8.1.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:34.8.1.pr

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