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Justinian I · The Digest of Justinian §35.2.23.pr

Bequest of a Right of Way and Falcidian Deduction

Passage 5468 of 9271 · Latin

Summary

Discusses the application of the Falcidian deduction when both an estate and a right of way are bequeathed. Specifically, considering the indivisible nature of the right of way, it presents an equitable interpretation where, if the required deduction is less than the value of the right of way, its complete loss is avoided by using the exception of doli for financial compensation.

[SCAEUOLA libro quinto decimo quaestionum. ] §35.2.23.prSi fundus mihi legetur et uia, in Falcidiae ratione, si tantum sit in uia, quantum amplius est in Falcidia, integer fundus capietur et uia perit.
[SCAEVOLA, from his fifteenth book of Questions.] an estate and a right of way are bequeathed to me, in the computation of the Falcidian law, if there is as much value in the right of way as the excess required to be deducted under the Falcidian law, the estate will be taken entire and the right of way is lost.
sed si uia legetur nec soluendo sit hereditas, non debebitur.
But if only a right of way is bequeathed and the inheritance is insolvent, it will not be due.
uidendum etiam, si fundo et uia legato minus ex utroque desideret quam sit uiae pretium.
We must also consider, if an estate and a right of way are bequeathed, what happens if the deduction required from both under the Falcidian law is less than the value of the right of way.
potest coacta ratione dici non tantum fundum solidum capi, sed etiam, ut doli exceptio tantum sarciat, quantum deest, ne plus habeat, quam Falcidia desiderat: ut tunc solum uia intercidat, quotiens plus Falcidia desiderat quam est uiae pretium.
By a strict reasoning, it can be said that not only is the entire estate taken, but also that the exception of doli compensates just so much as is lacking, so that the legatee may not keep more than what the Falcidian law permits; so that the right of way is lost only when the Falcidian law requires more than the value of the right of way.

Notes

  1. §35.2.23.prfundo et uia legato — Although legato is singular, agreeing with the closer noun uia, it functions as an ablative absolute (or dative complement) modifying both fundo and uia, meaning 'when both the estate and the right of way are bequeathed'.
  2. §35.2.23.prcoacta ratione — Ablative of means derived from the perfect passive participle coactus of the verb cogere (to compel, bring together), meaning 'by strict reasoning' or 'by a refined logical deduction.' It is used to introduce an equitable solution using the doli exceptio to avoid the complete loss of the indivisible right of way.
  3. §35.2.23.prdoli exceptio tantum sarciat, quantum deest — Because the right of way (uia) is indivisible, it cannot be partially deducted. Therefore, this mechanism allows the legatee to retain both the estate and the right of way, while the heir can use the exception of doli (doli exceptio) to demand and compensate (sarciat) for the amount lacking (quantum deest) to satisfy the Falcidian deduction (i.e., by paying equivalent value).

Cite this passage

Justinian I, The Digest of Justinian §35.2.23.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:35.2.23.pr

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