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Justinian I · The Digest of Justinian §34.8.3.pr-34.8.3.2

Invalidity of Legacies to Convicts and Purchased Slaves

Passage 5303 of 9271 · Latin

Summary

This chunk discusses the invalidity of bequests made to those condemned to the mines, explaining why they do not lapse to the treasury, and the extinguishment of a legacy when the testator subsequently purchases the slave who was the legatee.

[MARCIANUS libro undecimo institutionum. ] §34.8.3.prSi in metallum damnato quid extra causam alimentorum relictum fuerit, pro non scripto est nec ad fiscum pertinet: nam poenae seruus est, non Caesaris: et ita diuus Pius rescripsit.
[MARCIANUS in the eleventh book of the Institutes.] If anything outside the scope of maintenance is left to someone condemned to the mines, it is as if it had not been written, nor does it belong to the treasury; for he is a slave of the punishment, not of Caesar; and the divine Pius replied thus by rescript.
§34.8.3.1Sed et si post testamentum factum heres institutus uel legatarius in metallum datus sit, ad fiscum non pertinet.
But also if, after the testament was made, the instituted heir or the legatee is sentenced to the mines, it does not belong to the treasury.
§34.8.3.2Item si seruo alieno quid legatum fuerit et postea a testatore redemptus sit, legatum exstinguitur: nam quae in eam causam peruenerunt, a qua incipere non poterant, pro non scriptis habentur.
Likewise, if anything is bequeathed to another's slave, and afterwards he is purchased by the testator, the legacy is extinguished; for those things which have come into a state from which they could not have originated are held as not written.

Notes

  1. §34.8.3.prpoenae seruus — The dative poenae indicates 'punishment', and the phrase refers to the legal status of 'slave of the punishment' (servus poenae) under Roman law, in which a condemned person loses civil rights and is regarded as owned by the punishment itself. Because they lack legal capacity to acquire property, the bequest is void; and since they are not slaves of Caesar, the property does not lapse to the imperial treasury (fiscus).
  2. §34.8.3.2nam quae in eam causam peruenerunt, a qua incipere non poterant — The antecedent of the relative pronoun quae is neuter plural, referring to legal acts or bequests. The phrase in eam causam... a qua... means 'into that state/condition from which...'. Since a testator cannot directly bequeath to their own slave (without freeing them), if a slave legatee is purchased by the testator, the legacy enters a condition in which it could not have legally originated, and thus becomes void under the principle of the regula Catoniana.

Cite this passage

Justinian I, The Digest of Justinian §34.8.3.pr-34.8.3.2. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:34.8.3.pr-34.8.3.2

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