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Justinian I · The Digest of Justinian §35.2.16.pr-35.2.16.1

Partial Delivery of Legacies and Retaining the Falcidian Fourth

Passage 5461 of 9271 · Latin

Summary

Even if some of several legacies or a part of a single legacy has already been delivered, the heir can use the exception of dolo to retain the full Falcidian portion from the remaining assets.

[SCAEUOLA libro tertio quaestionum. ] §35.2.16.prSi ex pluribus rebus legatis heres quasdam soluerit, ex reliquis Falcidiam plenam per doli exceptionem retinere potest etiam pro his, quae iam data sunt.
[SCAEVOLA, from his third book of Questions.] If, out of several bequeathed things, the heir has paid some, he can, by means of the exception of dolo, retain from the remaining ones the full Falcidian portion even on behalf of those things which have already been given.
§35.2.16.1Sed et si una res sit legata, cuius pars soluta sit, ex reliquo potest plena Falcidia retineri.
But even if a single thing has been bequeathed, a part of which has been paid, the full Falcidian portion can be retained from the remainder.

Notes

  1. 35.2.16.prFalcidiam plenam — Refers to the "full Falcidian fourth" (the retention portion) that should have been deducted from the entire estate or legacies. It implies that even if the heir has already delivered some parts without deduction, they can deduct the entire portion from what remains.
  2. 35.2.16.prper doli exceptionem — Through the "exception of dolo (fraud)." When the legatee claims the fulfillment of the remaining legacy, demanding the whole without considering the part already delivered constitutes bad faith (dolus). Thus, the heir can assert the retention from the remainder by using this exception.

Cite this passage

Justinian I, The Digest of Justinian §35.2.16.pr-35.2.16.1. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:35.2.16.pr-35.2.16.1

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