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Justinian I · The Digest of Justinian §35.1.74.pr

Joint Bequest of Usufruct Conditioned on Non-Marriage

Passage 5405 of 9271 · Latin

Summary

This section addresses a joint bequest of a usufruct subject to the condition of the woman not marrying, stating that she retains her legal share even if she marries, and that the joint legatee's repudiation does not increase her portion.

[IDEM libro trigesimo secundo quaestionum. ] §35.1.74.prMulieri et Titio usus fructus, si non nubserit mulier, relictus est si mulier nubserit, quamdiu Titius et uiuit et in eodem statu erit, partem usus fructus habebit: tantum enim beneficio legis ex legato concessum esse mulieri intellegendum est, quantum haberet, si condicioni paruisset.
[THE SAME in the thirty-second book of Questions.] A usufruct was bequeathed to a woman and Titius, if the woman should not marry. If the woman marries, she will have a part of the usufruct as long as Titius both lives and remains in the same status; for it must be understood that only so much is granted to the woman from the legacy by the benefit of the law as she would have had if she had complied with the condition.
nec si Titius, qui condicione defectus est, legatum repudict, ea res mulieri proderit.
Nor, if Titius, who was excluded by the condition, should repudiate the legacy, will this circumstance benefit the woman.

Notes

  1. §35.1.74.prquantum haberet, si condicioni paruisset — A conditional clause expressing a past contrary-to-fact assumption. The protasis uses the pluperfect subjunctive 'paruisset' ('if she had complied with the condition'), and the apodosis uses the imperfect subjunctive 'haberet' ('she would have now', showing a continuous state).
  2. §35.1.74.prqui condicione defectus est — 'defectus' is the perfect participle of 'deficere' (to fail, be lacking, or be excluded). It refers to Titius's right being affected, limited, or excluded because the condition (of the woman not marrying) failed.
  3. §35.1.74.prrepudict — A scribal error or orthographic variant for 'repudiet' (present subjunctive, third person singular), expressing a hypothetical condition ('even if he should repudiate').

Cite this passage

Justinian I, The Digest of Justinian §35.1.74.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:35.1.74.pr

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