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Justinian I · The Digest of Justinian §34.9.17.pr

Distinction between intentional and ignorant neglect of revenge

Passage 5322 of 9271 · Latin

Summary

Discusses the distinction between an heir who knowingly neglected to avenge the deceased and one who did so out of ignorance, regarding their obligation to restore fruits and their right to revive actions extinguished by merger upon forfeiture of the inheritance.

[IDEM libro tertio decimo responsorum. ] §34.9.17.prHeredem, qui sciens defuncti uindictam insuper habuit, fructus omnes restituere cogendum existimaui nec probe desideraturum actionem confusam restitui: deceptum autem ignoratione facti bonae fidei possessoris defensionem habiturum ante motam scilicet controuersiam, si ratio fructuum subducatur, nec improbe confusam actionem reddi postulaturum.
[THE SAME, in the thirteenth book of Responses.] I was of the opinion that an heir who, with knowledge, neglected to avenge the deceased must be compelled to restore all the fruits, and would not properly desire that an action extinguished by merger be restored; but that one who was deceived by ignorance of the fact would have the defense of a bona fide possessor, of course prior to the initiation of the dispute, if an accounting of the fruits is made, and would not improperly demand that the merged action be restored.

Notes

  1. §34.9.17.prinsuper habuit — Perfect tense of the idiom 'insuper habere', meaning 'to disregard, neglect, or treat with indifference'. Here it refers to the heir neglecting the duty to avenge (uindicta) the deceased, which leads to unworthiness (indignitas) and forfeiture.
  2. §34.9.17.practionem confusam — An action extinguished by 'confusion' (merger). It refers to the legal extinguishment of claims that the heir had against the deceased (or vice versa) upon accepting the inheritance, as the qualities of debtor and creditor merged in the same person. The issue is whether such actions can be revived after the inheritance is stripped.
  3. §34.9.17.prsi ratio fructuum subducatur — The verb 'subducere' in financial contexts means 'to calculate, balance, or deduct'. Here, it indicates that the defense of a bona fide possessor is allowed on the condition that an accounting or deduction of the fruits gathered before the lawsuit is made.

Cite this passage

Justinian I, The Digest of Justinian §34.9.17.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:34.9.17.pr

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