Justinian I · The Digest of Justinian §35.1.64.pr-35.1.64.1

Conditions Against Marriage in a Locality and Evasion

Passage 5395 of 9271 · Latin

Summary

Citing Julian, the text discusses that a legacy condition against marrying a specific person does not invoke the law, whereas a condition against marrying in a specific locality requires examining whether it constitutes an evasion of the law.

[TERENTIUS CLEMENS libro quinto ad legem Iuliam et Papiam. ] §35.1.64.prHoc modo legato dato 'si Lucio Titio non nubserit' non esse legi locum Iulianus aiebat.

[TERENTIUS CLEMENS in the fifth book on the Lex Iulia et Papia.] Julian said that when a legacy is given in this manner, "if she does not marry Lucius Titius," there is no room for the law to apply.

§35.1.64.1Quod si ita scriptum esset 'si Ariciae non nubserit', interesse, an fraus legi facta esset: nam si ea esset, quae aliubi nuptias non facile possit inuenire, interpretandum ipso iure rescindi, quod fraudandae legis gratia esset adscriptum: legem enim utilem rei publicae, subolis scilicet procreandae causa latam, adiuuandam interpretatione.

But if it had been written thus, "if she does not marry at Aricia," it makes a difference whether an evasion of the law has been committed; for if she were such a person as could not easily find a marriage elsewhere, it must be interpreted that what was added for the sake of evading the law is void by operation of law. For the law, which is useful to the state, enacted of course for the sake of procreating offspring, must be assisted by interpretation.

Notes

35.1.64.prnon esse legi locum — Here, 'legi' (dative of 'lex') refers to the Lex Iulia et Papia, which encourages marriage and invalidates certain restrictive conditions on widows. 'non esse locum' means 'there is no room/place for'; hence, a condition not to marry one specific individual does not hinder marriage overall and thus does not trigger the law's intervention.
35.1.64.1interesse, an fraus legi facta esset — The indirect question clause beginning with 'an' serves as the subject of the impersonal verb 'interesse'. The phrase 'fraus legi' means 'evasion of/fraud upon the law', indicating that restricting marriage to a small town like Aricia must be scrutinized to see if it was done to practically prevent marriage and thus evade the purpose of the law.
35.1.64.1ea esset, quae... possit — With the demonstrative pronoun 'ea' (referring to the female legatee) as its antecedent, the relative clause led by 'quae' uses the subjunctive 'possit'. This is a relative clause of characteristic, defining her as 'such a person who [cannot easily find a marriage elsewhere]'.

Cite this passage

Justinian I, The Digest of Justinian §35.1.64.pr-35.1.64.1. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:35.1.64.pr-35.1.64.1

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