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Justinian I · The Digest of Justinian §35.3.5.pr

Security for Return of Excess Under Fideicommissa

Passage 5546 of 9271 · Latin

Summary

This fragment discusses whether and how security should be provided among heirs, legatees, and fideicommissaries regarding the restoration of legacies and fideicommissa under the Falcidian law.

[MARCELLUS libro uicesimo primo digestorum. ] §35.3.5.prUideamus, an stipulatio 'qua amplius per Falcidiam ceperis licuerit dari' aduersus eum non sufficiat, qui legatum alii restituere ex fideicommissi causa debet.
[MARCELLUS libro uicesimo primo digestorum.] Let us see whether the stipulation 'that it shall be allowed to be given back for whatever more you have received through the Falcidian law' is not sufficient against him who is obliged to restore a legacy to another by reason of a fideicommissum.
sufficiet autem dici nihil eius fidei commissum esse: cauebit scilicet legatario et is, qui fideicommissum accipiet, nisi forte malet legatarius circuitu sublato heredi caueri.
It will, however, be sufficient for it to be said that nothing has been entrusted to his good faith; of course, he who is to receive the fideicommissum will also give security to the legatee, unless perhaps the legatee prefers, by avoiding a roundabout way, that security be given to the heir.
sed et legatario praeterea cauendum est, si (ut plerumque aequum est) pro rata ex fideicommisso retinere ei concedendum est, quamuis tantum ex legato apud eum erit remansurum, ut sufficere possit ad praestandum fideicommissum.
But furthermore, security must also be given to the legatee, if (as is generally equitable) he is to be allowed to retain a pro rata portion from the fideicommissum, even though so much will remain with him from the legacy as to be sufficient for discharging the fideicommissum.

Notes

  1. §35.3.5.prqua amplius per Falcidiam ceperis licuerit dari — The formula of the stipulation regarding the return of excess received. 'qua' is an ablative of degree of difference ('by as much as'), and 'dari' is a passive infinitive meaning 'to be given back' or returned to the heir in this context.
  2. §35.3.5.preius fidei commissum esse — 'eius' is the genitive of the demonstrative pronoun referring to the legatee (the trustee). 'fidei' is the dative of fides, governed by 'commissum esse'. It literally means 'to have been entrusted to his good faith', referring to the imposition of a fideicommissum.
  3. §35.3.5.prlegatario praeterea cauendum est — 'cauendum est' is an impersonal passive periphrastic, and 'legatario' is a dative of benefit. It is interpreted as 'security must be provided for/to the legatee', which is consistent with the context where the legatee is the one to receive security.

Cite this passage

Justinian I, The Digest of Justinian §35.3.5.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:35.3.5.pr

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