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Justinian I · The Digest of Justinian §35.1.28.pr-35.1.28.1

Conditions on Third-Party Judgment and Legacies of Namesake Slaves

Passage 5359 of 9271 · Latin

Summary

The jurist discusses the validity of a legacy subject to the approval of a third party who dies before the testator, and whether a legacy of a named slave-girl applies to a newly purchased slave-girl given the same name after the original one was sold.

[PAULUS libro secundo epitomarum Alfeni digestorum. ] §35.1.28.prFiliae suae ita quis legauit: 'si Attia filia mea arbitratu Lucii Titii nubserit, ei tot heres meus dato'. §35.1.28.1Titio ante testatorem mortuo Attia nubserat: quaerebatur, an legatum ei deberetur.
[PAULUS, in the second book of his Epitomes of Alfenus' Digests.] A certain person bequeathed to his daughter as follows: "If my daughter Attia marries in accordance with the decision of Lucius Titius, my heir shall give her so much." Attia married after Titius had died before the testator; it was asked whether the legacy was due to her.
respondit deberi.
He replied that it was due.
'Attia uxor mea optato Philargyrum puerum, Agatheam ancillam, qui mei erunt cum moriar': is qui testamentum fecit Agatheam, quam testamenti tempore habuit, uendidit et postea ancillas emit, ex his uni Agatheae nomen imposuit: quaesitum est, an haec legata uideretur.
"My wife Attia shall choose the slave Philargyrus and the slave-girl Agathea, who shall be mine when I die." The person who made the will sold Agathea, whom he had at the time of the will, and afterwards bought slave-girls, and to one of these he gave the name Agathea; it was asked whether this one was considered to be bequeathed.
respondit legatam uideri.
He replied that she was considered to be bequeathed.

Notes

  1. §35.1.28.prarbitratu — The ablative singular of the noun arbitratus (decision, judgment). It functions as an adverbial modifier establishing a condition. Although the death of the third party Titius prior to the testator made the condition impossible to fulfill, the legacy was held valid, treating the impossibility as an excuse.
  2. §35.1.28.1optato — The future imperative active third-person (or second-person) singular of the verb optare (to choose). This is a formulaic legal term used in wills for a bequest of option (legatum optionis), instructing the beneficiary (here, the wife) to choose the specified items.
  3. §35.1.28.1qui mei erunt — The relative pronoun qui is in the masculine plural because it refers to two antecedents of different genders, Philargyrum (masculine) and Agatheam (feminine), following the grammatical rule of masculine gender dominance for plural persons.

Cite this passage

Justinian I, The Digest of Justinian §35.1.28.pr-35.1.28.1. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:35.1.28.pr-35.1.28.1

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