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Justinian I · The Digest of Justinian §36.1.47.pr

Advantage of Compelled Entry and Total Restitution

Passage 5600 of 9271 · Latin

Summary

Explains the advantage for an heir, who is requested to restore the entire inheritance and does not wish to retain the fourth part, to enter upon and restore the inheritance under the compulsion of the praetor rather than voluntarily.

[Modestinus libro singulari de heurematicis. ] §36.1.47.prQui totam hereditatem restituere rogatus quartam retinere non uult fidumque obsequium defuncti precibus praebere desiderat, sua sponte adire debebit heretatem, quasi ex Trebelliano eam restituturus.
[MODESTINUS, On Devices, Single Book] A person who, being requested to restore the whole inheritance, does not wish to retain the fourth part, and desires to render faithful obedience to the entreaties of the deceased, ought to enter upon the inheritance of his own accord, as if he were to restore it under the Trebellian senate's decree.
suaserim tamen, suspectam potius dicat hereditatem coactusque a praetore restituat: hoc enim casu ex ipso Trebelliano restituere uidetur expositoque hereditario metu uniuersas actiones in eum transfert, qui recepit hereditatem.
Nevertheless, I would advise that he should rather declare the inheritance to be suspect, and restore it under compulsion by the praetor: for in this case, he is deemed to restore it under the Trebellian senate's decree itself, and, the fear of the inheritance being removed, he transfers all actions to him who has received the inheritance.

Notes

  1. 36.1.47.prsuaserim — Perfect subjunctive used as a potential subjunctive, expressing a polite recommendation ('I would advise'). The subsequent subjunctives dicat and restituat form noun clauses with the conjunction ut omitted, indicating the substance of the advice.
  2. 36.1.47.prexpositoque hereditario metu — An ablative absolute construction. exposito is the perfect passive participle of exponere, used here either in the sense of 'putting aside, removing, or getting rid of' a danger/fear, or 'disclosing' it to the praetor. It denotes that the heir is freed from the risk (metus) of accepting an insolvent estate, or that the risk is clearly laid bare and transferred to the beneficiary.

Cite this passage

Justinian I, The Digest of Justinian §36.1.47.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:36.1.47.pr

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