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Justinian I · The Digest of Justinian §35.3.9.pr

Security for the Restoration of a Bequeathed Usufruct

Passage 5550 of 9271 · Latin

Summary

This section discusses to whom security for restoration must be given when a usufruct, rather than ownership, is bequeathed, distinguishing between cases where the usufruct is bequeathed directly and those where it is bequeathed conditionally.

[IDEM libro duodecimo fideicommissorum. ] §35.3.9.prSi non in controuersia sit proprietas, sed usus fructus (potest enim rei, cuius proprietas Titio legata est, usus fructus alii legari), tunc de eo restituendo non heredi, sed Titio caueri debeat.
[THE SAME on Trusts, Book 12] If it is not the ownership that is in dispute, but the usufruct (for the usufruct of a thing whose ownership has been bequeathed to Titius can be bequeathed to another), then security for its restoration ought to be given not to the heir, but to Titius.
interdum et si ab herede legetur usus fructus, Titio cauendum est: ueluti si detracto usu fructu proprietas ei legetur, usus fructus Seio: quid enim attinebit hoc casu heredi caueri, ad quem emolumentum intercidentis usus fructus non sit spectandum? uerum si usu fructu Seio legato proprietas Titio ita legetur, ut, cum ad Seium pertinere desierit, habeat proprietatem, tunc heredi caueri oportebit a fructuario, ab herede autem Titio, quia non sit certum usu fructu intercepto ad Titium proprietatem reuersuram.
Sometimes, even if the usufruct is bequeathed by the heir, security must be given to Titius: for example, if the ownership is bequeathed to him with the usufruct deducted, and the usufruct to Seius. For what concern will it be in this case for security to be given to the heir, to whom the benefit of the intervening usufruct is not to be expected to go? But if, the usufruct being bequeathed to Seius, the ownership is bequeathed to Titius in such a way that, when it ceases to belong to Seius, he shall have the ownership, then security must be given to the heir by the usufructuary, and by the heir to Titius, because it is not certain that upon the interruption of the usufruct the ownership will revert to Titius.

Notes

  1. §35.3.9.prcaueri — The passive infinitive of the verb caveo (to give security, guarantee) is used impersonally. The person to whom security is given is in the dative (non heredi, sed Titio), and the person who must give the security is indicated by a/ab with the ablative (a fructuario).
  2. §35.3.9.prquid enim attinebit — Future tense of attineo (to concern, be of use). The subject is the infinitive clause heredi caueri (for security to be given to the heir), and the entire clause forms a rhetorical question: "what relevance/utility will there be in security being given to the heir in this case?"
  3. §35.3.9.prab herede autem Titio — A parallel structure corresponding to the preceding heredi caueri oportebit a fructuario (security must be given to the heir by the usufructuary), with caueri oportebit omitted by ellipsis. It means "[security must be given] by the heir to Titius."

Cite this passage

Justinian I, The Digest of Justinian §35.3.9.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:35.3.9.pr

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