Humanitext Reader

Justinian I · The Digest of Justinian §36.1.37.pr

Arbitration Agreement and Security for Trust Restitution

Passage 5590 of 9271 · Latin

Summary

Paulus explains that upon the restoration of an inheritance under a trust, if the heir had previously entered into a submission to arbitration, the beneficiary must provide security to the heir, and unless such security is given, the heir cannot be compelled to restore.

[PAULUS libro tertio decimo ad edictum. ] §36.1.37.prCum hereditas ex fideicommissi causa restituta est, si ante cum herede compromissum est, puto fideicommissarium cauere debere heredi, sicut cum heres multa antequam restitueret administrauit.
[PAULUS, On the Edict, Book XIII] When an inheritance is restored by reason of a trust, if a submission to arbitration was previously entered into with the heir, I think that the beneficiary of the trust ought to provide security to the heir, just as when the heir has administered many affairs before restoring it.
nam quod dicitur retinere eum oportere, non est perpetuum.
For what is said about him being required to retain is not of universal application.
quid enim si nihil est, quod retineat? ueluti cum omnia in nominibus sunt aut in corporibus quae non possideat? nempe enim is cui restituta est omnia persequitur et tamen heres iudiciis quibus conuentus est aut stipulationibus quibus necesse habuit promittere, obstrictus manebit.
For what if there is nothing for him to retain? As, for instance, when everything consists of active debts or of physical objects which he does not possess? For indeed, the person to whom it has been restored pursues everything, and yet the heir will remain bound by the actions in which he was sued or by the stipulations by which he was compelled to make a promise.
ergo non alias cogetur restituere quam ei caueatur.
Therefore, he shall not be compelled to restore otherwise than if security is given to him.

Notes

  1. §36.1.37.prcompromissum est — Refers to an agreement to submit a dispute to arbitration and abide by the award. Here, it indicates that the heir (or the deceased) had entered into an arbitration agreement with a third party, creating a potential liability for the heir that continues even after the inheritance is restored.
  2. §36.1.37.prin nominibus sunt — Here, nomina (literally 'names') refers to active debts or claims. It is contrasted with tangible physical objects (corpora), emphasizing that claims cannot be physically possessed or retained as security.
  3. §36.1.37.prnon alias ... quam ei caueatur — A restrictive construction ('not otherwise than if...') which, together with the present subjunctive passive caueatur used impersonally, establishes a restrictive condition: 'he will not be compelled [to restore] unless security is given to him.'

Cite this passage

Justinian I, The Digest of Justinian §36.1.37.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:36.1.37.pr

Please note the AI-draft status of the translation and the date accessed.

Translation, notes and summary are AI-generated drafts, revised through reader feedback.