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Justinian I · The Digest of Justinian §35.2.27.pr

Invalidity of Waiving the Falcidian Law as a Condition

Passage 5472 of 9271 · Latin

Summary

Modestinus' response regarding a will where the testator made the waiver of the Falcidian law a condition for inheritance; since this condition was added to evade the law, it is treated as non-existent, and the appointed heirs can enter upon the inheritance without complying with it.

[IDEM libro sexto responsorum. ] §35.2.27.pr'Seius et Agerius si intra diem trigesimum mortis meae rei publicae nostrae cauerint contentos se futuros tot aureis legis Falcidiae beneficio omisso, heredes mihi sunto.
[THE SAME, in his sixth book of Responses.] 'If Seius and Agerius, within thirty days of my death, shall give security to our municipality that they will be content with so many aurei, waiving the benefit of the Falcidian law, let them be my heirs.
quos inuicem substituo.
Whom I substitute for each other.
quod si uoluntati meae non consenserint, exheredes sunto'. quaesitum est, an heredes instituti hereditatem adire possint, si condicioni parere nolunt, cum habeant substitutos eadem condicione praescripta.
But if they do not agree to my will, let them be disinherited.' The question arose whether the appointed heirs can enter upon the inheritance if they do not wish to comply with the condition, since they have substitutes appointed under the same prescribed condition.
respondit Seium et Agerium primo loco institutos perinde adire posse, ac si ea condicio, quae fraudis causa adscripta est, adscripta non esset.
He replied that Seius and Agerius, appointed in the first place, can enter upon the inheritance just as if that condition, which was added for the purpose of evading the law, had not been added.

Notes

  1. §35.2.27.prcauerint — Third-person plural future perfect of caveo, meaning "to give security" or "to guarantee". It takes the dative rei publicae nostrae ("to our municipality") as the party to whom security is given, and the accusative-with-infinitve clause contentos se futuros [esse] as its object.
  2. §35.2.27.prbeneficio omisso — Ablative absolute construction consisting of the noun beneficium and the perfect passive participle omissus (from omitto). With the genitive legis Falcidiae modifying beneficio, it means "the benefit of the Falcidian law having been waived" or "waiving the benefit of...".
  3. §35.2.27.prfraudis causa — Adverbial expression consisting of the ablative noun causa ("for the sake of, for the purpose of") with the genitive fraudis ("evasion, fraud"). Here it refers to the purpose of evading the statutory regulation (the Falcidian Law), a concept known as fraus legis.

Cite this passage

Justinian I, The Digest of Justinian §35.2.27.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:35.2.27.pr

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