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Justinian I · The Digest of Justinian §35.1.37.pr

Validity of Bequests Requiring Manumission of Slaves

Passage 5368 of 9271 · Latin

Summary

Paulus and Neratius hold that if a testator bequeaths a slave whom he himself cannot manumit on the condition that the legatee manumit him, the legacy is valid but the legatee is not compelled to perform the manumission.

[PAULUS libro singulari ad legem Fufiam Caniniam. ] §35.1.37.prSi quis eum, quem ipse manumittere non poterat, legauerit ita, ut eum legatarius manumitteret, etsi a legato non repellatur, non est compellendus, ut manumittat, quoniam totiens secundum uoluntatem testatoris facere compellitur, quotiens contra legem nihil sit futurum.
[PAULUS, in his single book on the Lex Fufia Caninia.] If anyone bequeaths a person whom he himself could not manumit, in such a way that the legatee should manumit him, even if the legatee is not barred from the legacy, he is not to be compelled to manumit him, since one is compelled to act according to the will of the testator only so often as nothing will be contrary to the law.
idque Neratius scribsit, et tamen a legato non esse eum repellendum, quoniam magis legatarium aliquid commodum testator in hoc seruo quam heredem habere uoluisset.
And Neratius wrote this, and yet that he should not be barred from the legacy, since the testator would have wished the legatee, rather than the heir, to have some benefit in this slave.

Notes

  1. §35.1.37.pra legato non repellatur — The subject of the subjunctive verb 'repellatur' is 'legatarius' (the legatee), supplied from the context. It indicates that even if the condition of manumission is legally impossible or contrary to law, the legacy itself is not void, and the legatee is not barred from receiving it.
  2. §35.1.37.prtotiens ... quotiens — Although literally meaning 'as many times... as often as', this correlative pair functions here to assert a restrictive condition: 'only in so far as' or 'only when' nothing contrary to the law will occur.
  3. §35.1.37.pret tamen a legato non esse eum repellendum — An indirect discourse (accusative with infinitive) continuing from 'idque Neratius scribsit', where 'eum' refers to the legatee ('legatarius'). The adverb 'tamen' (nevertheless) highlights the contrast that, although the legatee cannot be compelled to manumit, he is still not excluded from the legacy itself.

Cite this passage

Justinian I, The Digest of Justinian §35.1.37.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:35.1.37.pr

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