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Justinian I · The Digest of Justinian §35.1.63.pr-35.1.63.1

Conditions Prohibiting or Directing Marriage to Certain Persons

Passage 5394 of 9271 · Latin

Summary

Gaius discusses the validity and legal effects of conditional legacies that either prohibit marriage with specific persons or command marriage with a specific person.

[GAIUS libro tertio ad legem Iuliam et Papiam. ] §35.1.63.prCum ita legatum sit 'si Titio non nubserit' uel ita 'si neque Titio neque Seio neque Maeuio nubserit' et denique si plures personae comprehensae fuerint, magis placuit, cuilibet eorum si nubserit, amissuram legatum, nec uideri tali condicione uiduitatem iniunctam, cum alii cuilibet satis commode possit nubere.
[GAIUS in the third book on the Lex Iulia et Papia.] When a legacy has been left under the condition "if she does not marry Titius," or "if she marries neither Titius nor Seius nor Maevius," and finally if several persons have been included, it has been preferred that if she marries any one of them, she will lose the legacy, and that widowhood is not seen to be imposed by such a condition, since she can marry any other person quite conveniently.
§35.1.63.1Uideamus et si ita legatum sit 'si Titio nubserit'. et quidem si honeste Titio possit nubere, dubium non erit, quin, nisi paruerit condicioni, excludatur a legato: si uero indignus sit nuptiis eius iste Titius, dicendum est posse eam beneficio legis cuilibet nubere.
Let us also consider if a legacy has been left under the condition "if she marries Titius." And indeed, if she can honorably marry Titius, there will be no doubt that she is excluded from the legacy unless she complies with the condition; but if that Titius is unworthy of marriage with her, it must be said that she can marry anyone by the benefit of the law.
quae enim Titio nubere iubetur, ceteris omnibus nubere prohibetur: itaque si Titius indignus sit, tale est, quale si generaliter scriptum esset 'si non nubserit'. immo si uerum amamus, durior haec condicio est quam illa 'si non nubserit': nam et ceteris omnibus nubere prohibetur et Titio, cui inhoneste nuptura sit, nubere iubetur.
For she who is ordered to marry Titius is prohibited from marrying all others; therefore, if Titius is unworthy, it is just as if it had been written generally "if she does not marry." On the contrary, if we love the truth, this condition is harder than that one "if she does not marry"; for she is both prohibited from marrying all others and ordered to marry Titius, whom she would marry dishonorably.

Notes

  1. §35.1.63.pramissuram — The infinitive amissuram [esse] is part of the accusative-with-infinitive construction introduced by magis placuit, with its subject accusative eam (her) or mulierem (the woman) being omitted.
  2. §35.1.63.1quae — The demonstrative pronoun ea (the woman), which serves as the antecedent, is omitted; the entire clause quae... iubetur (she who is ordered to marry Titius) functions as the subject of the main verb prohibetur.
  3. §35.1.63.1si uerum amamus — Literally meaning 'if we love the truth,' it is used here as an idiomatic parenthetical phrase meaning 'to speak the truth' or 'to be frank.'
  4. §35.1.63.1nuptura sit — This is a periphrastic active subjunctive consisting of the future active participle nuptura and the present subjunctive sit, expressing a future expectation or likelihood ('she is to marry' or 'she would marry') within the relative clause.

Cite this passage

Justinian I, The Digest of Justinian §35.1.63.pr-35.1.63.1. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:35.1.63.pr-35.1.63.1

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