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Justinian I · The Digest of Justinian §35.2.5.pr

Legacies Fulfilling Public Promises and the Falcidian Law

Passage 5450 of 9271 · Latin

Summary

Discusses the application of the Falcidian Law to debts paid via legacy based on a prior promise, and the effects of time-limits or conditions on such legacies.

[IDEM libro octauo responsorum. ] §35.2.5.prUerbis legati uel fideicommissi non necessarie ciuitati relinquitur, quod ex causa pollicitationis praestari necesse est.
[THE SAME, from his eighth book of Opinions.] That which must be performed by reason of a promise is not necessarily bequeathed to a city by the words of a legacy or a trust.
itaque si debiti modum testamento dominus excessit, superfluum dumtaxat Falcidia minuetur. quare nec fidei committi legatarii poterit.
Therefore, if the master in his will exceeds the measure of the debt, only the excess will be reduced by the Falcidian Law; and for this reason, no trust can be imposed upon the legatee.
quod si dies aut condicio legatum fecerit, non utilitatis aestimatio, sed totum petetur quod datum est.
But if a time-limit or a condition has made it a legacy, not the valuation of the utility, but the whole of what was given will be claimed.
nec si uiuo testatore dies uenerit aut condicio fuerit impleta, fiet irritum, quod semel competit.
Nor, if the time-limit arrives or the condition is fulfilled while the testator is still living, will that which has once become valid become void.

Notes

  1. §35.2.5.prnon necessarie — Functions as an adverb modifying relinquitur, meaning 'is not necessarily bequeathed' (i.e., it is merely the performance of an existing obligation from a promise and not necessary as a substantial legacy). This explains why the amount corresponding to the existing debt is excluded from reduction under the Falcidian Law.
  2. §35.2.5.prfidei committi legatarii poterit — fideicommitti is a passive infinitive. legatarii functions as a genitive/dative expressing the person on whom the trust is imposed ('from/on the legatee'). Since the portion of the legacy that pays an existing debt is not a real gain for the city, no trust (fideicommissum) to hand it over to a third party can be imposed on the legatee.
  3. §35.2.5.prquod si dies aut condicio legatum fecerit — Refers to a situation where a time-limit (dies) or a condition (condicio) has 'made' the existing debt a legacy (fecerit), meaning that a new legal or substantial benefit (such as accelerating the payment date) is created for the creditor (the city), giving it the substance of a legacy beyond mere debt performance.

Cite this passage

Justinian I, The Digest of Justinian §35.2.5.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:35.2.5.pr

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