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Justinian I · The Digest of Justinian §35.1.83.pr

Institution of an Heir Conditioned on Proving Filiation

Passage 5414 of 9271 · Latin

Summary

Regarding a testament that institutes Aurelius Claudius as heir on the condition of proving to a judge that he is the testator's son, Paulus rules that the condition is not within his power and thus the testament is void.

[PAULUS libro duodecimo responsorum. ] §35.1.83.prLucius Titius ita testamentum fecit: 'Aurelius Claudius natus ex illa muliere, si filium meum se esse iudici probauerit, heres mihi esto'. Paulus respondit filium de quo quaereretur non sub ea condicione institutum uideri, quae in potestate eius est, et ideo testamentum nullius esse momenti.
[PAULUS in the twelfth book of Responses.] Lucius Titius made a testament as follows: 'Let Aurelius Claudius, born of that woman, if he shall have proved to the judge that he is my son, be my heir.' Paulus answered that the son in question does not seem to have been instituted under a condition which is in his power, and therefore the testament is of no effect.

Notes

  1. §35.1.83.prde quo quaereretur — Subjunctive (imperfect subjunctive) because it is in a subordinate clause within indirect speech (oratio obliqua) introduced by 'Paulus respondit'.
  2. §35.1.83.prquae in potestate eius est — A condition 'which is in his power'. This indicates that whether he is the son or whether he can prove it to the judge is not considered a 'potestative condition' (one within the sole control of the party's will), as it depends on objective facts and the judge's decision.
  3. §35.1.83.prnullus esse momenti — Genitive of quality. It means that the testament has 'no weight/force' legally, i.e., it is 'void' or 'of no effect'.

Cite this passage

Justinian I, The Digest of Justinian §35.1.83.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:35.1.83.pr

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