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Justinian I · The Digest of Justinian §35.1.47.pr

Alienation of Conditionally Freed Slave and Explicit Terms

Passage 5378 of 9271 · Latin

Summary

This section addresses the legal effect of alienating a slave who was conditionally freed and given an unconditional legacy, noting that explicitly stating an otherwise implied condition can alter its legal consequence.

[MARCELLUS libro quarto decimo digestorum. ] §35.1.47.prSeruo libertatem ita dedit: 'ille, si meus erit, liber esto': legatum uel hereditatem sine condicione ei dedit: deinde eum alienauit.
[MARCELLUS in the fourteenth book of the Digests.] He gave freedom to a slave in this way: 'Let him, if he shall be mine, be free': he gave a legacy or an inheritance to him without condition: then he alienated him.
debebitur domino eius legatum uel hereditas et iussu eius adiri poterit: nam id expressit 'si meus erit' in libertate danda, quo futurum erat ut impediretur libertas, etiamsi expressum non esset.
The legacy or inheritance will be due to his master and can be accepted by his order: for he expressed this 'if he shall be mine' in granting freedom, by which it was destined that the freedom would be impeded, even if it had not been expressed.
saepenumero tamen mutatur rei effectus, quamquam id expresserit testator, quod || et si non fecisset, inesset tamen.
Often, however, the effect of the matter is changed, although the testator has expressed that which, || even if he had not done so, would nevertheless have been inherent.

Notes

  1. §35.1.47.prquo futurum erat ut impediretur libertas — The ablative relative pronoun `quo` refers to the preceding expressed condition "if he shall be mine" or the legal situation arising from it. `futurum erat ut...` expresses past future necessity, indicating that because the slave was actually alienated, the acquisition of freedom "was destined to be impeded."
  2. §35.1.47.prquod || et si non fecisset, inesset tamen — `quod` is a relative pronoun referring to the antecedent `id` (what the testator expressed) and serves as the subject of `inesset`. `et si non fecisset` represents a past counterfactual condition using the pluperfect subjunctive ("even if the testator had not done so [i.e., expressed it]"). `inesset` (imperfect subjunctive) denotes a potential or resulting state in the main clause, meaning "it would nevertheless have been inherent."

Cite this passage

Justinian I, The Digest of Justinian §35.1.47.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:35.1.47.pr

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