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Justinian I · The Digest of Justinian §34.9.23.pr

Application of the Senatusconsultum to Tacit Trusts of the Falcidian Portion

Passage 5328 of 9271 · Latin

Summary

This section explains that the Senate-consult on tacit trusts applies equally when an heir is tacitly requested to restore the Falcidian portion (one-fourth) of the inheritance to a person incapable of taking.

[GAIUS libro singulari de tacitis fideicommissis. ] §34.9.23.prSi quilibet heres ex cuiuscumque testamento tacite rogatus fuerit, ut quadrantem, quem legis Falcidiae beneficio retinuit, non capienti restituat, aeque locus erit senatus consulto: neque enim multum intererit inter tale fideicommissum et cum quis id, quod ad se ex hereditate peruenerit, restituere rogatus sit.
If any heir under anyone’s will has been tacitly requested to restore to a person who is incapable of taking the quadrant which he retained by the benefit of the Lex Falcidia, there will equally be room for the Senate-consult; for there will not be much difference between such a fideicommissum and when someone is requested to restore that which has come to him from an inheritance.

Notes

  1. §34.9.23.prquadrantem — Refers to the "one-fourth" (quarta Falcidia) of the estate that the heir is entitled to retain. Under the Lex Falcidia, heirs could limit legacies to three-quarters of the estate, keeping at least one-fourth (quadrans) for themselves.
  2. §34.9.23.prnon capienti — Meaning "to a person incapable of taking." It refers to those who lack the legal capacity (capere) to receive legacies under Augustan marriage laws (such as the Lex Julia et Papia Poppaea).
  3. §34.9.23.prsenatus consulto — Refers to the Senate-consult aimed at regulating tacit trusts (fideicommissum tacitum). If a tacit trust intended to circumvent the law by transferring property to an incapable person is discovered, the property is confiscated to the treasury.
  4. §34.9.23.printer tale fideicommissum et cum — The preposition `inter` connects the noun phrase `tale fideicommissum` with the clause introduced by `cum` (which functions as a noun clause here). It sets up the comparison: "between such a trust and when someone is requested..."

Cite this passage

Justinian I, The Digest of Justinian §34.9.23.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:34.9.23.pr

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