Humanitext Reader

Justinian I · The Digest of Justinian §36.1.1.14-36.1.1.21

Restitution of Inheritance and Adjustment of Liabilities

Passage 5552 of 9271 · Latin

Summary

This chunk discusses the validity of restoring inheritances by minors and corporations, and the method of valuation when a specific tract of land is reserved. It also examines the adjustment of legacy liabilities exceeding the inheritance in trusts where the Falcidian law does not apply, and the division of claims between the heir and the beneficiary of the trust.

[ULPIANUS libro tertio fideicommissorum. ] §36.1.1.14Curatori tamen adulescentis ab adulescente poterit restitui hereditas, quoniam necessaria non est auctoritas ad restitutionem.
However, an inheritance can be restored to the curator of a minor by the minor, since authorization is not necessary for restoration.
§36.1.1.15Si autem collegium uel corpus sit, quod rogatum est restituere decreto eorum cui, qui sunt in collegio uel corpore, in singulis inspecta eorum persona restitutionem ualere: nec enim ipse sibi uidetur quis horum restituere.
If, however, it is a guild or a corporate body which is requested to restore, and by their decree restoration is made to someone who is in the guild or corporate body, the restoration is valid, even though the personal capacity of each individual is examined; for none of them is deemed to restore to himself.
§36.1.1.16Si heres praecepto fundo rogatus sit hereditatem restituere, ex Trebelliano senatus consulto restituet hereditatem.
If an heir is requested to restore an inheritance after pre-taking a certain tract of land, he will restore the inheritance under the Trebellian senatusconsult.
nec multum facit, si fundus pignori datus est: neque enim aeris alieni personalis actio fundum sequitur, sed eum, cui hereditas ex Trebelliano senatus consulto restituta est.
Nor does it make much difference if the land has been given in pledge; for a personal action for a debt does not follow the land, but follows the person to whom the inheritance has been restored under the Trebellian senatusconsult.
sed cauendum est heredi a fideicommissario, ut, si forte fundus fuerit euictus a creditore, habeat heres cautum.
But the heir must be secured by the beneficiary of the trust, so that, if by chance the land should be evicted by a creditor, the heir may have security.
Iulianus autem cauendum non putat, sed aestimandum fundum, quanti ualet sine hac cautione, hoc est quanti uendere potest sine cautione: et si potest tanti uendere non interposita cautione, quantum facit quarta pars bonorum, ex Trebelliano transituras actiones: si minoris, retento eo quod deest similiter ex Trebelliano restitutionem fieri: quae sententia multas quaestiones dirimit.
Julian, however, thinks that security should not be given, but that the land should be valued at what it is worth without this security, that is, at what price it can be sold without security; and if, without the interposition of security, it can be sold for as much as makes up a fourth part of the estate, the actions will transfer under the Trebellian senatusconsult; if for less, the restoration is made similarly under the Trebellian senatusconsult, after retaining what is lacking; which opinion settles many questions.
§36.1.1.17Si is, qui quadringenta in bonis habeat, trecenta legauerit et deductis ducentis rogauerit heredem Seio restituere hereditatem, an trecentorum onus fideicommissarius subeat an uero hactenus, quatenus ad eum ex hereditate peruenit? Iulianus ait competere quidem aduersus eum trecentorum petitionem, non autem amplius quam in ducentis actionem aduersus fideicommissarium daturum, in heredem autem centum.
If a person who has four hundred in his estate should bequeath three hundred and, after deducting two hundred, request the heir to restore the inheritance to Seius, does the beneficiary of the trust undergo the burden of the three hundred, or rather only to the extent that came to him from the inheritance? Julian says that the petition for the three hundred indeed lies against him, but that the praetor will not grant an action against the beneficiary of the trust for more than two hundred, but against the heir for one hundred.
et mihi uidetur uera esse Iuliani sententia, ne damnum fideicommissarius sentiat ultra, quam ad eum ex hereditate quid peruenit: neminem enim oportere plus legati nomine praestare, quam ad eum ex hereditate peruenit, quamuis Falcidia cesset, ut rescripto diui Pii continetur.
And Julian's opinion seems to me to be true, so that the beneficiary of the trust does not suffer a loss beyond what came to him from the inheritance; for no one ought to pay more in the name of a legacy than what came to him from the inheritance, even though the Falcidian law does not apply, as is contained in a rescript of the Divine Pius.
§36.1.1.18Denique nec ex militis testa- mento plus legatorum nomine praestatur, quam quantitas est hereditatis aere alieno deducto.
Finally, not even under a soldier's will is more paid in the name of legacies than the amount of the inheritance after deducting the debts.
nec tamen quartam retinere fideicommissario permittitur.
Nor, however, is the beneficiary of the trust permitted to retain a fourth.
§36.1.1.19Inde Neratius scribit, si heres rogatus restituere totam hereditatem non deducta Falcidia rogato et ipsi, ut alii restituat, non utique debere eum detrahere fideicommissario secundo quartam, nisi liberalitatem tantum ad priorem fideicommissarium heres uoluit pertinere.
Hence Neratius writes that, if an heir who is requested to restore the entire inheritance without deducting the Falcidian portion is himself requested to restore it to another, he ought not by any means to deduct a fourth from the second beneficiary of the trust, unless the heir wished the liberality to belong only to the first beneficiary of the trust.
§36.1.1.20Sed si quadringenta habens ducenta legauerit Titio et partem dimidiam hereditatis Sempronio restituere rogauerit, ex Trebelliano restitutionem faciendam Iulianus ait et legatorum petitionem scindi sic, ut centum quidem petantur ab herede, centum uero alia legatarius a fideicommissario petat.
But if a person who has four hundred should bequeath two hundred to Titius and request that a half share of the inheritance be restored to Sempronius, Julian says that the restoration must be made under the Trebellian senatusconsult and the petition for legacies split in such a way that one hundred indeed is claimed from the heir, but the legatee claims the other hundred from the beneficiary of the trust.
quod idcirco dicit Iulianus, quoniam secundum hanc rationem integram quartam habet, id est centum integra.
Julian says this because according to this calculation the heir has a full fourth, that is, a full hundred.
§36.1.1.21Idem Iulianus scribit, si is, qui quadringenta in bonis habeat, trecenta legasset et deductis centum rogasset heredem, ut hereditatem Sempronio restituat, debere dici deductis centum restituta hereditate legatorum actionem in fideicommissarium dari.
The same Julian writes that, if a person who has four hundred in his estate had bequeathed three hundred and, after deducting one hundred, had requested the heir to restore the inheritance to Sempronius, it ought to be said that once the inheritance is restored after deducting the one hundred, the action for the legacies is granted against the beneficiary of the trust.

Notes

  1. §36.1.1.14Curatori... adulescentis — In contrast to the preceding section (13), where a pupil cannot restore to his tutor with the tutor's own authorization (auctoritas), here a minor (adulescens) is permitted to restore to his curator. The reason is that authorization is not legally necessary (necessaria) for the act of restoration, and thus it does not conflict with the prohibition of self-dealing.
  2. §36.1.1.15decreto eorum cui — This passage describes a scenario where a guild (collegium) or corporate body (corpus), as a collective entity, is requested to restore, and by its decree (decreto eorum) restores to a specific member (cui, qui sunt...). Syntactically, following the conditional clause "Si... sit", the main clause is expressed as an accusative with infinitive construction (restitutionem ualere) in indirect speech. The legal logic is that because the corporation and its individual members are distinct legal entities, it is not deemed a self-restoration (ipse sibi... restore).
  3. §36.1.1.16Iulianus autem cauendum non putat — The phrases "quanti ualet" and "quanti uendere potest" use the genitive of value (genitivus pretii). In Julian's view, instead of demanding security (cautio), the objective value of the land (the price at which it can be sold without security) should be assessed. The transfer of actions is determined by whether this value reaches the "fourth part" (quarta pars) that the heir is entitled to retain. Syntactically, "transituras [esse] actiones" and "restitutionem fieri" are accusative with infinitive constructions depending on the indirect speech introduced by Julian's opinion.
  4. §36.1.1.17non autem amplius quam in ducentis... — In the phrase "non autem amplius quam in ducentis actionem aduersus fideicommissarium daturum [esse]," "daturum" is a future active participle, forming a future infinitive with the omission of "esse," where the implied subject is the praetor. This syntax reflects the praetorian protection for the beneficiary of the trust, indicating that the praetor will limit the action against the beneficiary to the amount actually received (200), granting the remainder against the heir.
  5. §36.1.1.19rogato et ipsi, ut alii restituat — The phrase "rogato et ipsi" functions as an ablative absolute using the perfect participle, meaning "he himself also having been requested [to restore to another]." It describes the situation where the first beneficiary, having received the inheritance without any deduction, cannot in turn deduct the Falcidian fourth when restoring it to the second beneficiary, unless such was the testator's intent.

Cite this passage

Justinian I, The Digest of Justinian §36.1.1.14-36.1.1.21. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:36.1.1.14-36.1.1.21

Please note the AI-draft status of the translation and the date accessed.

Translation, notes and summary are AI-generated drafts, revised through reader feedback.