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Justinian I · The Digest of Justinian §36.1.29.pr-36.1.29.2

Conditional Trust Restitution and Fruits after Compulsory Entry

Passage 5582 of 9271 · Latin

Summary

In a case where a sole heir is requested to restore inheritance shares unconditionally and conditionally, and the whole estate is restored to 'me' through compulsory entry, the text discusses the obligation to restore fruits upon the fulfillment of the condition, the redistribution of shares, and the non-applicability of the Falcidian Law.

[AFRICANUS libro sexto quaestionum. ] §36.1.29.prEx asse heres institutus partem hereditatis mihi pure, tibi sub condicione restituere rogatus cum suspectam diceret, postulante me adit et mihi totam ex senatus consulto restituit: quandoque condicio extiterit, an fructus partis tuae restituere tibi debeam, non immerito dubitabatur.
An heir appointed to the whole estate, having been requested to restore a part of the inheritance to me unconditionally and to you under a condition, when he declared it to be suspect to himself, entered upon the inheritance at my request and restored the whole of it to me according to the Senate Consult; whenever the condition should exist, it was not without reason doubted whether I ought to restore to you the fruits of your share.
et plerisque placet non esse eos praestandos, quia nec ab herede praestarentur, si sua sponte adisset, sufficiat autem ius tuum tibi integrum conseruari, non etiam meliorem condicionem tuam fieri.
And it is approved by most authorities that they are not to be paid, because they would not be paid by the heir either, if he had entered voluntarily, and it is sufficient that your right is preserved intact to you, and not also that your condition is made better.
§36.1.29.1Idem tamen existimabant, si ex asse heres institutus mihi quadrantem pure, tibi aeque quadrantem sub condicione restituere rogatus sit et, cum suspectam hereditatem diceret, cogente me adit, quandoque condicio exstiterit, semissem tibi esse restituendum.
Nevertheless, the same authorities thought that if an heir appointed to the whole estate had been requested to restore a fourth part to me unconditionally, and likewise a fourth part to you under a condition, and, when he declared the inheritance to be suspect, entered under my compulsion, whenever the condition should exist, a half must be restored to you.
§36.1.29.2Sed nec lege Falcidia in proposita specie usurum me puto, quamuis scriptus heres, si sponte adisset, uteretur.
But neither do I think that I shall use the Falcidian law in the case proposed, although the written heir would have used it if he had entered voluntarily.

Notes

  1. §36.1.29.prpostulante me — Ablative absolute. It indicates that the heir was compelled by the praetor to enter upon the inheritance at the request of 'me,' the beneficiary of the trust.
  2. §36.1.29.prquia nec ab herede praestarentur, si sua sponte adisset — A contrary-to-fact conditional sentence in the past. The verb of the apodosis is in the subjunctive imperfect `praestarentur`, and the verb of the protasis is in the subjunctive pluperfect `adisset`, indicating that even if the heir had entered voluntarily (which he did not), the fruits would not have been paid.
  3. §36.1.29.1semissem tibi esse restituendum — In the scenario where the heir was requested to restore 'a fourth to me, and a fourth to you,' since the heir lost his share (half) due to compulsory entry, the portion to be restored from 'me' (who received the whole) to 'you' upon the fulfillment of the condition is 'half (`semissem`)', which consists of your original fourth plus half of the heir's lost share (another fourth).
  4. §36.1.29.2Sed nec lege Falcidia in proposita specie usurum me puto — The subject of the infinitive `usurum (esse)` is the accusative `me`. It states the decision that 'I,' who received the entire inheritance through the compulsory execution of the trust, cannot claim the Falcidian fourth (retention) with respect to the portion to be restored to 'you' upon the fulfillment of the condition.

Cite this passage

Justinian I, The Digest of Justinian §36.1.29.pr-36.1.29.2. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:36.1.29.pr-36.1.29.2

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