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Justinian I · The Digest of Justinian §35.1.77.pr-35.1.77.3

Implied Conditions in Legacies and Limits of Mucian Caution

Passage 5408 of 9271 · Latin

Summary

This chunk discusses the inheritance of conditions in wills and codicils, the limits of applying the Mucian caution, and the legal principles surrounding the remission of the obligation to provide caution.

[IDEM libro septimo responsorum. ] §35.1.77.prAuia, quae nepotem sub condicione emancipationis pro parte heredem instituerat, ita postea codicillis scribsit: 'hoc amplius nepoti meo, quam quod eum heredem institui, lego praedia illa'.
[THE SAME in the seventh book of Responses.] A grandmother, who had appointed her grandson as heir to a share under the condition of emancipation, subsequently wrote in her codicils as follows: 'In addition to my having appointed him heir, I bequeath those estates to my grandson.' It is held that the condition of emancipation is deemed to be repeated, even though the grandmother had made no substitution in the legacies as she had done in the inheritance.
condicionem emancipationis repetitam uideri placet, quamuis auia nullam in legatis, ut in hereditate, substitutionem fecisset. nam et cum seruus pure quidem liber, heres autem sub condicione scriptus et, si heres non exstiterit, legatum accipere iussus est, in legato repetitam uideri libertatem diuus Pius rescribsit.
For the divine Pius also rescribed that when a slave is indeed appointed free unconditionally, but is appointed heir under a condition, and, if he does not become heir, is ordered to receive a legacy, the freedom is deemed to be repeated in the legacy.
§35.1.77.1Muciana cautio locum non habet, si per aliam condicionem actio legati differri possit.
The Mucian caution has no place if the action for the legacy can be deferred by another condition.
§35.1.77.2'Titio, si mulier non nubserit, heres centum dato': quam pecuniam eidem mulieri Titius restituere rogatus est.
'Let the heir give one hundred to Titius, if the woman does not marry'; Titius was requested to restore this money to the same woman.
si nubserit mulier die legati cedente, fideicommissum petet: remoto autem fideicommisso legatarius exemplum Mucianae cautionis non habebit.
If the woman marries when the right to the legacy vests, she will claim the fideicommissum; but if the fideicommissum is set aside, the legatee will not have the benefit of the Mucian caution.
§35.1.77.3Pater exheredatae filiae tutores dedit eosque, si mater eius, impubere filia constituta, uita decessisset, ad rem gerendam accedere iussit, cum uxori mandatum esset, ut moriens filiae communi decies restitueret.
A father appointed tutors for his disinherited daughter and ordered them, if her mother should die while the daughter was still underage, to enter upon the administration, while the wife (mother) had been requested to restore ten hundred thousand sesterces to their common daughter at her death.
non sub condicione tutores uidebuntur dati nec, si quid aliud interea puella quaesisset, eius administratione prohiberi, cautio uero fideicommissi matri remissa.
The tutors will not be deemed appointed under a condition, nor, if the girl should have acquired anything else in the meantime, are they prohibited from its administration; but the caution for the fideicommissum is deemed remitted to the mother.
quocumque indicio uoluntatis cautio legatorum uel fideicommissorum remitti potest.
By any indication of intent, the caution for legacies or fideicommissa can be remitted.
itaque si cautionis non petendae condicio legato uel fideicommisso praescribatur, condicionem ea res non faciet: non enim deficiet, si quis caueri desiderauerit, onere cautionis non secuto, quod aduersus inuitum hodie iure publico sequi non potest, postquam remitti posse cautionem placuit.
Therefore, if a condition of not demanding a caution is prescribed for a legacy or fideicommissum, this circumstance will not create a condition; for it will not fail if anyone should desire caution to be given, even if the burden of caution does not follow, which today by public law cannot be enforced against an unwilling person, after it was decided that caution can be remitted.

Notes

  1. §35.1.77.prcondicionem emancipationis repetitam uideri — The condition of emancipation attached to the heir's appointment in the main will (testamentum) is interpreted as impliedly carried over (repeated) to the subsequent legacy left by codicils. Since codicils are subordinate to the main will, the prerequisites of the former extend to the latter unless indicated otherwise.
  2. §35.1.77.1Muciana cautio — The 'Mucian caution' (cautio Muciana) is a legal remedy in wills containing negative conditions (e.g., not marrying), allowing the legatee to receive the legacy immediately before the condition is met by providing security promising to restore it if they breach the condition. However, if there is another unresolved condition (aliam condicionem) delaying the action, this acceleration is not applicable.
  3. §35.1.77.2die legati cedente — Refers to the day on which the right to the legacy 'vests' (dies cedens). In conditional legacies, this is usually the moment when the condition is fulfilled, at which point the legatee acquires a legal right. Here, the focus is on whether the woman has married by that time.
  4. §35.1.77.3cautio uero fideicommissi matri remissa — The obligation to provide security (cautio) for the execution of the fideicommissum by the wife (mother) is interpreted as impliedly 'remitted' (remissa) based on the testator's intent (uoluntas). This is inferred because the father barred the tutors from acting while the mother was alive, indicating a high degree of trust in her.
  5. §35.1.77.3non enim deficiet — The clause 'not to demand caution' does not constitute a true condition (condicio). Therefore, even if someone requests caution, the will or legacy itself will not 'fail' (deficere). The subject of `deficiet` is the legacy or fideicommissum itself.

Cite this passage

Justinian I, The Digest of Justinian §35.1.77.pr-35.1.77.3. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:35.1.77.pr-35.1.77.3

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