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Justinian I · The Digest of Justinian §35.1.85.pr

Restoration upon Request and Conditions in Trusts

Passage 5416 of 9271 · Latin

Summary

In a trust where Titia charged her son to restore his entire property to his children upon their request, it is asked whether the phrase 'when they request' constitutes a condition, and the jurist answers that it does not.

[SCAEUOLA libro tertio responsorum. ] §35.1.85.prTitia heredis instituti liberos habentis filii fidei commisit, uti rem eius uniuersam restitueret filiis eius liberisue eorum, cum ipsi petissent, sine ulla iuris cauillatione: quaero, an his uerbis 'cum illi a te petierint' condicio fideicommisso adscripta uideatur.
[SCAEUOLA in the third book of Responses.] Titia committed to the good faith of her son, who was appointed heir and had children, that he should restore his entire property to his children or their children, when they themselves should have requested it, without any legal sophistry. I ask whether by these words, 'when they shall have requested it of you,' a condition seems to be attached to the trust.
respondit non uideri.
He answered that it does not.

Notes

  1. §35.1.85.prheredis instituti liberos habentis filii — filii is a genitive qualifying fidei ("committed to the good faith of the son"). heredis instituti liberos habentis are also genitives agreeing with filii, meaning "of the son who was appointed heir and had children."
  2. §35.1.85.prcum ipsi petissent — While petissent is in the pluperfect subjunctive in the indirect description of the will, the direct quotation in the query uses 'cum illi a te petierint' (future perfect or perfect subjunctive). This cum clause is interpreted not as a legal 'condition' (condicio) suspending the trust, but merely as designating the time or trigger for performance, justifying the answer 'non uideri'.

Cite this passage

Justinian I, The Digest of Justinian §35.1.85.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:35.1.85.pr

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