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Justinian I · The Digest of Justinian §35.1.80.pr

Barring Conditions and Monument Charges in Trusts

Passage 5411 of 9271 · Latin

Summary

Scaevola explains that in testamentary trusts, conditions that immediately bar a claimant are not treated as conditional, and contrasts the legal difference between building a monument as a condition and as a charge.

[SCAEUOLA libro octauo quaestionum. ] §35.1.80.prEas causas, quae protinus agentem repellunt, in fideicommissis non pro condicionalibus obseruari oportet: eas uero, quae habent moram cum sumptu, admittemus cautione oblata: nec enim parem dicemus eum, cui ita datum sit, si monumentum fecerit, et eum, cui datum est, ut monumentum faciat.
[SCAEVOLA in the eighth book of Questions.] is not proper that those conditions which immediately bar a claimant should be observed in trusts as conditional; but we shall admit those which involve delay together with expense, upon security being offered; for we shall not say that a person to whom a legacy is given in this way, "if he shall have built a monument," is on the same footing as one to whom it is given "in order that he may build a monument."

Notes

  1. §35.1.80.pragentem — Accusative of the present participle agens (to act, to sue), used substantively here to refer to the claimant or legatee who demands the execution of the trust.
  2. §35.1.80.prcautione oblata — Ablative absolute construction consisting of the noun cautio (security, guarantee) and the participle oblatus (offered), expressing the condition or means "upon security being offered."
  3. §35.1.80.prsi monumentum fecerit ... ut monumentum faciat — The former "si" clause expresses a suspensive condition (condicio), meaning the trust does not take effect until the condition is fulfilled (the monument is built). The latter "ut" clause expresses a charge or purpose (modus), meaning the trust takes effect immediately but imposes an obligation. The text contrasts these two legal concepts.

Cite this passage

Justinian I, The Digest of Justinian §35.1.80.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:35.1.80.pr

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