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Justinian I · The Digest of Justinian §35.1.86.pr-35.1.86.1

Conditional Freedom, Legacies, and the Catonian Rule

Passage 5417 of 9271 · Latin

Summary

Discusses the relation between fulfilling conditions of freedom and acquiring legacies in cases of manumission or alienation, and the non-applicability of the Catonian rule when conditional freedom and an unconditional legacy coexist.

[MAECIANUS libro tertio fideicommissorum. ] §35.1.86.prIulianus noster eum, qui decem dare et ita liber esse iussus esset, si a uiuente manumissus esset, non aliter legatum, quod ei cum libertate datum esset, habiturum, quam si condicioni libertatis paruisset: item in emptorem, si alienatus esset.
[MAECIANUS in the third book on Trusts.] Our Julianus held that a person who had been ordered to give ten and thus be free, even if he had been manumitted by his master during the latter's lifetime, would not otherwise obtain the legacy given to him along with his freedom, than if he had complied with the condition of his freedom: the same applies in relation to the purchaser, if he had been alienated.
sed id tunc locum habet, cum omnimodo simul cum libertate legatum adquiri potuit, licet legato imposito non sit, ueluti cum in tempus libertatis legatum collatum esset.
But this takes place only when the legacy could in any case be acquired at the same time as freedom, even though no condition was imposed on the legacy itself, as when the legacy was deferred to the time of freedom.
§35.1.86.1Cum uero libertas sub condicione, legatum autem praesenti die datum est, in hoc quaestio est, an constiterit legatum: etenim nec Catonianae sententiae locum in proposito esse, quia etsi statim testator decessisset, non tamen omnimodo inutile esset legatum, cum posset condicio libertatis ante aditam hereditatem impleri et legatum manumisso deberi, nisi forte necessarius heres exstitisset: tunc enim omnimodo inutile erit legatum iure ipso, quia sub condicione acceperit libertatem.
On the other hand, when freedom is granted under a condition, but the legacy is given on the present day, the question is whether the legacy is valid. For indeed, the Catonian rule does not apply to the case proposed, because even if the testator had died immediately, the legacy would not have been entirely invalid, since the condition of freedom could have been fulfilled before the inheritance was entered upon, and the legacy would have been due to the manumitted person, unless by chance a necessary heir had emerged: for then, the legacy will be entirely invalid by operation of law, because he received his freedom under a condition.

Notes

  1. §35.1.86.prIulianus noster — Meaning "our Julianus [held/judged]". From the beginning of this section down to habiturum [esse], indirect speech (accusative with infinitive) is used, and the main governing verb of saying or thinking (such as putauit or respondit) is omitted.
  2. §35.1.86.pritem in emptorem — Meaning "the same [applies] in relation to the purchaser". Following the logic of the preceding clause, if the slave has been sold (alienated) to a third party, he cannot obtain the legacy unless he fulfills the condition (giving ten) toward the purchaser. An expression of obligation, such as item in emptorem [condicioni parendum esse], is understood.
  3. §35.1.86.1Catonianae sententiae — Referring to the "Catonian Rule" (Regula Catoniana). This legal principle states that a legacy which would have been invalid if the testator had died at the time the will was made remains invalid no matter when the testator dies. In the present case, even if the testator had died immediately, there remained a possibility that the condition of freedom could be fulfilled before the inheritance was entered upon, thus exempting this case from the rule.

Cite this passage

Justinian I, The Digest of Justinian §35.1.86.pr-35.1.86.1. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:35.1.86.pr-35.1.86.1

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