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Justinian I · The Digest of Justinian §36.1.10.pr

Premature Restitution of Inheritance and Transfer of Actions

Passage 5561 of 9271 · Latin

Summary

This chunk discusses the invalidity of the transfer of actions when an inheritance is restored before the term or condition is met, and the more favorable interpretation that recognizes the transfer upon subsequent ratification.

[GAIUS libro secundo fideicommissorum. ] §36.1.10.prSed et si ante diem uel ante condicionem restituta sit hereditas, non transferuntur actiones, quia non ita restituitur hereditas, ut testator rogauit.
[GAIUS from the second book on Trusts.] But even if the inheritance has been restored before the day or before the condition, the actions are not transferred, because the inheritance is not restored in the way that the testator requested.
plane posteaquam exstiterit condicio uel dies uenerit si ratam habeat restitutionem hereditatis, benignius est intellegi tunc translatas uideri actiones.
Clearly, after the condition has been fulfilled or the day has come, if he ratifies the restitution of the inheritance, it is more favorable to understand that the actions are deemed to have been transferred at that time.

Notes

  1. §36.1.10.prratam habeat — The phrase ratam habere is a legal expression meaning 'to ratify' or 'to approve'. The subject of the subjunctive active third-person singular verb habeat is not explicitly expressed but refers to the heir (heres) who had already restored the inheritance prematurely.
  2. §36.1.10.prbenignius est intellegi — The expression benignius est ('it is more favorable' or 'it is more equitable') indicates a benevolent interpretation in legal hermeneutics. It functions impersonally, taking the passive infinitive intellegi as its subject, which in turn governs the accusative-with-infinitive construction translatas uideri actiones ('that the actions are deemed to have been transferred').

Cite this passage

Justinian I, The Digest of Justinian §36.1.10.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:36.1.10.pr

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