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Justinian I · The Digest of Justinian §36.1.20.pr-36.1.20.2

Timing of Trust Rights, Sharing of Estate, and Expenses

Passage 5572 of 9271 · Latin

Summary

This chunk addresses the acquisition of unconditional trusts when a son becomes independent, Aristo's view that interprets a request to share an inheritance as a restoration under the Trebellian senatusconsult, and the credit of estate preservation and sales expenses to the heir.

[PAULUS libro tertio ad Sabinum. ] §36.1.20.prUbi pure fideicommissum datum est, si adiectum sit: 'rogo des filio tuo faciasque, ut ad eum perueniat', rescriptum est uideri in id tempus dari, quo capere potest, id est sui iuris fiat.
[PAULUS in the third book on Sabinus.] Where a trust has been given unconditionally, if there is added: 'I request you to give it to your son and to see that it reaches him', it has been stated in a rescript that it is deemed to be given at that time when he is able to acquire it, that is, when he becomes independent.
§36.1.20.1Te rogo, Luci Titi, hereditatem 'meam cum Attio partiaris'. ex senatus consulto Trebelliano in eum, cui restituta est hereditas, actiones competere Aristo ait, quia pro hoc accipiendum sit 'rogo hereditatem illam restituas': nec uerba spectantur senatus consulti, sed sententia quibuscumque uerbis, dum testator senserit, ut hereditas sua restituatur.
'I request you, Lucius Titius, to share my inheritance with Attius.' Aristo says that under the Trebellian senatusconsult, actions lie against him to whom the inheritance has been restored, because this is to be accepted as equivalent to 'I request you to restore that inheritance'; and regard is paid not to the words of the senatusconsult, but to its intention, expressed in whatever words, provided that the testator intended that his inheritance should be restored.
§36.1.20.2Qui in distrahendis conseruandisue rebus hereditariis sumptus factus est, imputari heredi debet.
Whatever expense has been incurred in selling or preserving the property of the inheritance ought to be credited to the heir.

Notes

  1. §36.1.20.prquo capere potest, id est sui iuris fiat — The subject of the relative clause 'quo capere potest' is 'the son' (filius), implied from 'filio tuo' in the quoted trust clause. The phrase 'id est sui iuris fiat' (that is, he becomes independent) explains the legal condition under which a child under power is able to acquire (capere) a trust, using the present subjunctive 'fiat' to express a hypothetical or clarifying condition.
  2. §36.1.20.1actiones competere — Part of the accusative and infinitive (A.C.I.) construction dependent on 'Aristo ait'. The verb 'competere' is used intransitively to mean 'to be available' or 'to lie' (of legal actions), with 'actiones' (actions) as its subject. Combined with the prepositional phrase 'in eum cui...', it means that 'actions lie against him to whom the inheritance has been restored'.
  3. §36.1.20.1dum testator senserit — The conjunction 'dum' takes the subjunctive ('senserit', perfect tense) to introduce a provisional or conditional clause ('provided that' / 'as long as'). It emphasizes that as long as the testator intended for the inheritance to be restored, the exact wording used is immaterial.

Cite this passage

Justinian I, The Digest of Justinian §36.1.20.pr-36.1.20.2. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:36.1.20.pr-36.1.20.2

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