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Justinian I · The Digest of Justinian §36.1.34.pr

Offsetting Losses and Interim Fruits in Trusts

Passage 5587 of 9271 · Latin

Summary

Marcianus quotes Celsus' discussion regarding the offsetting of losses of the inheritance against the fruits (increase) gathered during the interim period in a fideicommissum, supporting the view that losses and fruits should be computed together up to the total amount of the bequest to protect the fideicommissary.

[MARCIANUS libro octauo institutionum. ] §36.1.34.prScribit Celsus libro uicensimo digestorum, si qui quadringenta in bonis habebat petit ab herede suo, ut, si sine liberis moreretur, quanta pecunia ex hereditate sua ad eum peruenisset, Maenio restitueretur:, si ex fructibus medio tempore quadringenta perceperit, et sine liberis decesserit, heredem eius Maeuio quadringenta debiturum.
[MARCIAN, in the eighth book of his Institutes.] Celsus writes in the twentieth book of his Digests that if someone who had four hundred in his patrimony requested of his heir that, if he should die without children, whatever money should have come to him from his inheritance should be restored to Maenius, and if in the meantime he gathered four hundred from the fruits and died without children, his heir would owe four hundred to Maevius.
et cum diu multumque tractauit, an, cum augmentum heres sensit, et periculum sustineat an per contrarium, nouissime ait iniquum esse ad fideicommissarium damnum pertinere, ad quem augmentum non pertinet: et an ad supplendum, inquit, quodcumque ex quadringentis defuerit, etiam augmentum ad eum pertinebit, hoc est ut usque ad summam quadringentorum damni et fructus computentur: quod uerius esse arbitror.
And when he had discussed at length and much whether, since the heir perceived the increase, he should also bear the risk, or on the contrary, he finally said that it is inequitable that the loss should belong to the fideicommissary, to whom the increase does not belong; and he asks whether, in order to make up whatever might be missing from the four hundred, the increase will also belong to him, that is, so that the losses and fruits may be computed up to the sum of four hundred, which I think is more correct.

Notes

  1. §36.1.34.prsi qui quadringenta in bonis habebat — si qui (= si quis) is used in a hypothetical case-of-law scenario. Although habebat is imperfect indicative and petit is present indicative, they represent a hypothetical condition typically used in juridical case presentations.
  2. §36.1.34.prheredem eius Maeuio quadringenta debiturum — debiturum [esse] is an accusative-with-infinitive construction (AcI) dependent on the leading verb Scribit Celsus at the beginning of the section. It serves as the apodosis to the conditional clause si ex fructibus...
  3. §36.1.34.pran, cum augmentum heres sensit, et periculum sustineat an per contrarium — an ... sustineat an per contrarium forms an indirect question acting as the object of the preceding verb tractauit. The clause cum ... sensit is a temporal/circumstantial clause meaning 'when the heir perceived the increase.' et goes with periculum in the sense of 'also the risk.'
  4. §36.1.34.prquod uerius esse arbitror — The subject of arbitror is Marcianus (the author of the current fragment), not Celsus, who is being quoted. The relative pronoun quod refers back to the preceding proposition (that losses and fruits should be computed together up to the limit of four hundred) and serves as the subject of the accusative-with-infinitive clause quod uerius esse.

Cite this passage

Justinian I, The Digest of Justinian §36.1.34.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:36.1.34.pr

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