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Justinian I · The Digest of Justinian §35.1.11.pr-35.1.11.1

Conditions Fulfilled at Will-Making and Types of Acts

Passage 5342 of 9271 · Latin

Summary

This text discusses how to handle conditions already fulfilled at the time of making a will, distinguishing based on the testator's knowledge and the repeatability of the act, and clarifies the timing of fulfillment for promiscuous (general) versus non-promiscuous conditions.

[PAULUS libro quarto ad Sabinum. ] §35.1.11.prSi iam facta sint quae condicionis loco ponuntur et sciat testator, quae iterum fieri possunt exspectentur ut fiant: si uero nesciat, praesenti debeantur.
[PAULUS in the fourth book on Sabinus.] If those things which are placed by way of condition have already been done and the testator knows it, those which can be done again are expected to be done; but if he does not know, they are due immediately.
§35.1.11.1Item sciendum est promiscuas condiciones post mortem impleri oportere, si in hoc fiant, ut testamento pareatur, ueluti 'si Capitolium ascenderit' et similia, non promiscuas etiam uiuo testatore existere posse, ueluti 'si Titius consul factus fuerit'.
Likewise, it must be known that promiscuous conditions ought to be fulfilled after death, if they are performed for this purpose, namely, to comply with the testament, such as 'if he ascends the Capitol' and the like; non-promiscuous conditions can be fulfilled even while the testator is alive, such as 'if Titius becomes consul'.

Notes

  1. §35.1.11.prquae iterum fieri possunt exspectentur ut fiant — If the act set as a condition can be repeated (`iterum fieri possunt`) and the testator knows that it has already been performed, it is required that the act be performed "again" after the creation of the testament (`exspectentur ut fiant`). This indicates that rather than treating the past act as fulfillment, a future repetition is expected based on the testator's knowledge.
  2. §35.1.11.prpraesenti debeantur — `praesenti` functions adverbially to mean "immediately" or "at once" (derived from the ablative `praesenti tempore` or `praesenti die`). If the testator was unaware that the condition had already been fulfilled, they could not have intended to wait for a future performance, so the condition is treated as already satisfied, and the legacy becomes due immediately.
  3. §35.1.11.1promiscuas condiciones — "Promiscuous conditions" (`promiscuas condiciones`) refer to general conditions consisting of voluntary acts that anyone can perform at any time (such as "ascending the Capitol"). These must be performed after death with the specific intent of complying with the will (`ut testamento pareatur`). In contrast, "non-promiscuous conditions" (`non promiscuas`), such as attaining a public office, depend on external events not entirely within one's unilateral control, and can be validly fulfilled even during the testator's lifetime.

Cite this passage

Justinian I, The Digest of Justinian §35.1.11.pr-35.1.11.1. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:35.1.11.pr-35.1.11.1

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