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Justinian I · The Digest of Justinian §35.2.3.pr-35.2.3.2

Heir's Special Gains and Valuation of Annual Bequests

Passage 5448 of 9271 · Latin

Summary

This passage argues that an heir's personal profit from selling an insolvent estate or settling with creditors does not benefit the legatees, and provides Marcellus's view on calculating the legacy value of annual bequests to a municipality under the Falcidian Law.

[PAULUS libro singulari ad legem Falcidiam. ] §35.2.3.prSi heres institutus eam hereditatem quae soluendo non est uendiderit, uix quidem poterit persuaderi non fuisse eam hereditatem soluendo, quae emptorem inuenerit: uera autem ratione nihil legatariis debebitur, quia magis ex stultitia emptoris habere uidetur heres institutus quam ex bonis defuncti.
[PAULUS, from his single book on the Falcidian Law.] If an appointed heir sells an inheritance that is insolvent, it can indeed scarcely be persuaded that the inheritance, which has found a buyer, was insolvent; but by true reason, nothing will be owed to the legatees, because the appointed heir is seen to hold it rather from the foolishness of the buyer than from the assets of the deceased.
nam et e contrario si male uendiderit res hereditarias, non erit hoc legatariorum detrimentum: ita ergo commodum debet esse heredis, si bene res administrauerit.
For on the contrary, if he sells the hereditary assets poorly, this will not be to the detriment of the legatees; therefore, the advantage ought to belong to the heir if he administers the affairs well.
§35.2.3.1Sed et si is qui soluendo non est legauerit et heres cum creditoribus deciderit, ne solidum solueret, et ob eam decisionem factum sit, ut aliquid retineret, nihil tamen legatariis debiturum, quia eam pecuniam non ex hereditate, sed ex decisione habet.
But even if one who is insolvent has made a legacy, and the heir has settled with the creditors so as not to pay the full amount, and as a result of that settlement it happens that he retains something, still nothing will be owed to the legatees, because he has that money not from the inheritance, but from the settlement.
§35.2.3.2Item si rei publicae in annos singulos legatum sit, cum de lege Falcidia quaeratur, Marcellus putat tantum uideri legatum, quantum sufficiat sorti ad usuras trientes eius summae, quae legata est, colligendas.
Likewise, if a legacy is made to a municipality annually, when the question is raised concerning the Falcidian Law, Marcellus thinks that only so much should be deemed to have been bequeathed as would be sufficient as principal to collect interest at the rate of one-third of the sum which was bequeathed.

Notes

  1. §35.2.3.prsoluendo non est — soluendo is the dative of the gerund of solvere (to pay), used here with esse as a legal idiom meaning 'to be insolvent' (literally, 'not to be for paying').
  2. §35.2.3.pruix quidem poterit persuaderi — Since persuadeo (to persuade, convince) takes the dative, it is used impersonally in the passive voice (poterit persuaderi, literally 'it can scarcely be persuaded'). It introduces the accusative with infinitive clause (non fuisse...) to mean 'it can hardly be believed that...'
  3. §35.2.3.2usuras trientes — In Roman interest calculations, a triens (one-third) refers to a monthly interest rate of one-third of a percent, which equates to an annual interest rate of four percent. Thus, 'usuras trientes' means interest at the rate of four percent per annum.

Cite this passage

Justinian I, The Digest of Justinian §35.2.3.pr-35.2.3.2. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:35.2.3.pr-35.2.3.2

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