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Justinian I · The Digest of Justinian §35.1.7.pr-35.1.7.1

The Mucian Security and Negative Conditions in Inheritance

Passage 5338 of 9271 · Latin

Summary

Ulpian states that the Mucian security applies to negative conditions in both legacies and inheritances, and explains how it operates when a husband is appointed heir (either in part or to the whole estate) under the condition of not claiming his promised dowry.

[ULPIANUS libro octauo decimo ad Sabinum. ] §35.1.7.prMucianae cautionis utilitas consistit in condicionibus, quae in non faciendo sunt conceptae, ut puta si in Capitolium non 'ascenderit' 'si Stichum non manumiserit' et in similibus: et ita Aristoni et Neratio et Iuliano uisum est: quae sententia et constitutione diui Pii comprobata est.
[ULPIAN in the eighteenth book on Sabinus.] The utility of the Mucian security consists in conditions that are framed in a negative way, such as "if he does not ascend the Capitol," "if he does not manumit Stichus," and the like; and so it seemed to Aristo, Neratius, and Julian; which opinion was also confirmed by a constitution of the divine Pius.
nec solum in legatis placuit, uerum in hereditatibus quoque idem remedium admissum est.
And this remedy was approved not only in legacies, but was also admitted in inheritances.
§35.1.7.1Unde si uxor maritum suum, cui dotem promiserat, ita heredem scribserit ex parte: 'si dotem, quam 'ei promisi, neque petierit neque exegerit', denuntiare eum posse coheredi paratum se accepto facere dotem uel cauere et ita adire posse hereditatem.
Hence, if a wife, who had promised a dowry to her husband, should appoint him heir to a part in this manner: "if he neither requests nor exacts the dowry which I promised him," [it is held] that he can give notice to his co-heir that he is ready to release the dowry or to give security, and thus he can enter upon the inheritance.
sed si ex asse sit institutus maritus sub ea condicione, quoniam non est cui caueat, non impediri eum, quo minus adeat hereditatem: nam iure ipso uidetur impleta condicio eo, quod non est, quem possit de dote conuenire ipse adeundo hereditatem.
But if the husband is appointed heir to the whole estate under this condition, since there is no one to whom he may give security, he is not prevented from entering upon the inheritance; for by the law itself the condition is deemed fulfilled by the fact that there is no one whom he can sue concerning the dowry, he himself entering upon the inheritance.

Notes

  1. §35.1.7.1denuntiare eum posse — The main verb of ruling (such as *responsum est* or *placuit*) is omitted, and the legal conclusion is stated in the form of indirect discourse (accusative with infinitive). This is a characteristic style of Roman legal writings when stating an opinion or rule.
  2. §35.1.7.1non impediri eum, quo minus adeat — The conjunction `quo minus` (or `quominus`) introduces the subjunctive `adeat` after a verb of prevention in the negative (`non impediri`), forming the construction "he is not prevented from entering."
  3. §35.1.7.1eo, quod non est, quem possit de dote conuenire — `eo, quod...` expresses the cause or reason ("by the fact that..."). The subjunctive `possit` in the relative clause `quem possit` is a subjunctive of characteristic, emphasizing the non-existence of anyone whom he could sue.

Cite this passage

Justinian I, The Digest of Justinian §35.1.7.pr-35.1.7.1. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:35.1.7.pr-35.1.7.1

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