Humanitext Reader

Justinian I · The Digest of Justinian §36.1.41.pr-36.1.41.2

Transfer of Praetorian Actions and Scope of Restitution

Passage 5594 of 9271 · Latin

Summary

This passage explains that under the Trebellian senatusconsultum, honorary actions and natural obligations are transferred, the duty of restoration extends to the successors of the heir (such as subsequent heirs, fathers, or masters), and the status of the recipient of the restoration is immaterial.

[PAULUS libro ulcensimo ad edictum. ] §36.1.41.prQuamuis senatus de his actionibus transferendis loquatur, quae iure ciuili heredi et in heredem competunt, tamen honorariae actiones transeunt: nulla enim separatio est: immo et causa naturalium obligationum transit.
[PAULUS, On the Edict, Book XX] Although the senate speaks of transferring those actions which belong to the heir and against the heir under civil law, nevertheless honorary actions also pass; for there is no distinction; indeed, even the cause of natural obligations passes.
§36.1.41.1Persona autem heredis instituti Trebelliano continetur: uerum hoc iure utimur, ut et successor heredis recte ex Trebelliano restituat, ucluti heres bonorumue possessor, uel pater dominusue, quibus adquisita est hereditas: omnes enim quod iuris habent, ex Trebelliano senatus consulto restituere debent, nec interest, is qui institutus est an pater dominusue rogatus est restituere.
Now, the person of the instituted heir is contained in the Trebellian decree; but we apply this rule of law, that the successor of the heir also correctly restores under the Trebellian decree, such as the heir or the possessor of goods, or the father or master to whom the inheritance was acquired; for all of them must restore what rights they have under the Trebellian senatusconsultum, nor does it matter whether he who was instituted or the father or master was asked to restore.
§36.1.41.2Nihil interest, cui nostro nomine restituitur pater familias sit an is qui in aliena potestate est,
It makes no difference whether the person to whom restoration is made in our name is a paterfamilias or someone who is under another's power,

Notes

  1. §36.1.41.prheredi et in heredem competunt — The verb competunt governs the dative heredi to mean "belong to the heir" (active rights) and the prepositional phrase in heredem to mean "lie against the heir" (passive liabilities). The single verb simultaneously controls these two distinct syntactic constructions to cover both active and passive actions.
  2. §36.1.41.1quod iuris — The genitive iuris functions as a partitive genitive dependent on the neuter singular relative pronoun quod, meaning "whatever of right" or "all the rights they possess."
  3. §36.1.41.2cui nostro nomine restituitur pater familias sit an is — The indirect double question introduced by Nihil interest is "... sit an is..." ("whether [he] is a paterfamilias or he who..."). The relative clause cui nostro nomine restituitur ("he to whom restoration is made in our name") lacks an explicit antecedent, which would act as the subject of the indirect question.

Cite this passage

Justinian I, The Digest of Justinian §36.1.41.pr-36.1.41.2. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:36.1.41.pr-36.1.41.2

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.