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Justinian I · The Digest of Justinian §35.1.109.pr

Parties' Death Before Payment and Fulfillment by Heir

Passage 5440 of 9271 · Latin

Summary

In a case where both the heir charged with restoring an inheritance upon receiving 100 coins and the beneficiary Titia died before payment, it was ruled that Titia's heir could not claim the inheritance by offering the coins. Claudius notes that it is doubtful whether a true condition actually existed in this case.

[IDEM libro nicesimo digestorum. ] §35.1.109.prA testatore rogatus, ut acceptis centum nummis restitueret hereditatem Titiae coheredi suae, adita hereditate decessit: similiter et Titia, antequam daret centum: quaesitum est, an heres Titiae offerendo centum fideicommisso partem hereditatis consequi possit.
[THE SAME in his twentieth book of Digests.] A person, having been requested by the testator to restore the inheritance to his co-heir Titia upon receiving one hundred coins, died after entering upon the inheritance; likewise Titia also died before she could give the hundred. The question was asked whether the heir of Titia, by offering the hundred, could obtain the portion of the inheritance under the trust.
respondit heredem condicioni parere non posse.
He replied that the heir could not satisfy the condition.
CLAUDIUS. magno ingenio de iure aperto respondit, cum potest dubitari, an in proposito condicio esset.
CLAUDIUS. He replied with great ingenuity on a clear point of law, although it can be doubted whether there was a condition in the case proposed.

Notes

  1. 35.1.109.pracceptis centum nummis — Ablative absolute indicating a condition precedent. Receiving one hundred coins (from the co-heir Titia) is the prerequisite for restoring the inheritance (executing the trust).
  2. 35.1.109.prfideicommisso — Ablative of means or ground modifying the verb consequi ('to obtain'), meaning 'by virtue of the trust' or 'under the trust'.
  3. 35.1.109.prcum potest dubitari — The conjunction cum is used here with the indicative potest. In classical Latin, concessive cum ('although') typically governs the subjunctive, but here the indicative highlights an objective fact ('in a situation where it can be doubted').

Cite this passage

Justinian I, The Digest of Justinian §35.1.109.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:35.1.109.pr

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