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Justinian I · The Digest of Justinian §36.1.32.pr-36.1.32.2

Conditional Trusts, Manumission, and Compulsory Entry

Passage 5585 of 9271 · Latin

Summary

This text regulates the obligation of an heir to enter upon an inheritance when conditional trusts are involved, addressing the relation to a slave's manumission, the fulfillment of conditions (acts or giving), and the scope of the praetor's intervention.

[IDEM libro nono institutionum. ] §36.1.32.prSi cui pure libertas et per fideicommissum sub condicione hereditas relicta est, cogitur heres adire hereditatem, si suspectam dicat, et restituere: et deficiente condicione libertas ei eripi non potest.
[BY THE SAME AUTHOR, in the ninth book of his Institutes.] If freedom is left to someone unconditionally, and the inheritance is left under a condition by a trust, the heir is compelled to enter upon the inheritance, even if he says it is suspect, and to restore it; and if the condition fails, freedom cannot be taken away from him.
§36.1.32.1Si autem ei, qui in diem libertatem accepit, hereditas per fideicommissum relicta fuerit, suspectam eam interim non posse adiri diuus Pius Cassio Hadriano rescripsit, cum non potest nondum libero hereditas restitui: nec rursus contra uoluntatem defuncti libertatem esse praestandam.
But if the inheritance has been left by a trust to one who received freedom after a certain day, the deified Pius replied by rescript to Cassius Hadrianus that in the meantime it cannot be entered upon as suspect, since the inheritance cannot be restored to one who is not yet free; nor, on the other hand, should freedom be granted contrary to the will of the deceased.
§36.1.32.2Si sub condicione heres institutus rogatusque hereditatem restituere non uult condicioni parere et adire hereditatem, si facti est condicio, debet parere et adire et restituere uel, si in dando sit, offerente fideicommissario.
If an heir who is appointed under a condition and requested to restore the inheritance does not wish to comply with the condition and to enter upon the inheritance, if the condition is of an act, he must comply, enter, and restore, or, if it consists in giving, upon the fideicommissary offering it.
recusante autem herede factum adimplere licentia dabitur fideicommissario secundum imitationem dationis factum implere, et tunc necessitas imponitur heredi adire hereditatem.
But if the heir refuses to fulfill the act, permission will be given to the fideicommissary to fulfill the act in imitation of the giving, and then the necessity of entering upon the inheritance is imposed on the heir.
ceterae condiciones, quae non sunt in potestate heredis, ad officium praetoris non pertinent.
Other conditions, which are not in the power of the heir, do not pertain to the office of the praetor.

Notes

  1. 36.1.32.prpure — An adverb meaning "unconditionally," qualifying the bequest of freedom (libertas). This stands in contrast to the inheritance (hereditas), which is left "under a condition" (sub condicione) through a trust (per fideicommissum).
  2. 36.1.32.1in diem — Meaning "to a certain day," referring to a grant of freedom with a suspensive term. Until this day arrives, the person remains a slave, which explains the subsequent phrase nondum libero ("to one who is not yet free").
  3. 36.1.32.2si in dando sit — Refers to a case where the condition consists in "giving" (constructed with in and the ablative gerund). The following ablative absolute offerente fideicommissario ("upon the fideicommissary offering it") indicates the means by which this condition is satisfied.
  4. 36.1.32.2secundum imitationem dationis — Refers to the mechanism allowing the fideicommissary to perform the act themselves "in imitation of a giving" (dationis) when the heir refuses to do so. It represents a legal fiction treating the performance of an act analogously to the tender of a gift.

Cite this passage

Justinian I, The Digest of Justinian §36.1.32.pr-36.1.32.2. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:36.1.32.pr-36.1.32.2

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