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Justinian I · The Digest of Justinian §36.1.54.pr-36.1.54.1

Heir's Property and Compelling Acceptance in Slave Trust

Passage 5607 of 9271 · Latin

Summary

Discusses the validity of a trust when the designated heir is the owner of the legacyed property, and the conditions for compelling the acceptance of an inheritance concerning a slave who received freedom from one co-heir and a trust of the inheritance from another.

[IDEM libro nono decimo quaestionum. ] §36.1.54.prSi res aliena Titio legata fuerit isque domino rei herede instituto petierit, ut hereditatem Maeuio restituat, Maeuius legatum inutiliter petet: non enim poterit consequi, quod ad institutum, id est rei dominum peruenire non poterat.
[THE SAME, Questions, Book 19] If a thing belonging to another has been legacyed to Titius, and he has requested the designated heir, who is the owner of the thing, to restore the inheritance to Maevius, Maevius will claim the legacy uselessly; for he cannot obtain what could not come to the designated heir, that is, the owner of the thing.
§36.1.54.1Seruus ab altero ex heredibus libertatem, ab altero fideicommissum hereditatis accepit.
A slave received freedom from one of the heirs, and a trust of the inheritance from the other.
si neuter adire uelit, nullae praetoris partes erunt, quia neque propter solam libertatem compellitur adire neque is, a quo libertas data non est, propter eum, quinondum liber est, ut adeat, compellitur: et senatus consulto locus est, cum ab omnibus directa, uel fideicommissa libertas ab eo datur a quo hereditas quoque relinquitur.
If neither of them wishes to enter upon the inheritance, there will be no part for the praetor to play, because an heir is not compelled to enter upon the inheritance solely for the sake of freedom, nor is the one by whom freedom was not given compelled to enter for the sake of him who is not yet free. And there is room for the senatusconsultum when direct freedom is given by all, or when trusted freedom is given by him by whom the inheritance is also left.
sed si forte is, a quo libertas data est, portionem suam repudiauit uel condicione exclusus est, cum portio eius ad alterum peruenerit, defendi poterit adire cogendum: quid enim interest, quo iure debitor libertatis et hereditatis idem esse coeperit?
But if, by chance, the one by whom freedom was given has rejected his share or has been excluded by a condition, when his share has come to the other, it can be maintained that the latter ought to be compelled to enter; for what difference does it make by what right the debtor of freedom and of the inheritance has begun to be the same person?

Notes

  1. §36.1.54.prdomino rei herede instituto — The noun 'domino' is the dative object governed by the verb 'petierit'. 'herede instituto' is either in apposition to 'domino' or functions as an ablative absolute ('the owner of the thing having been appointed heir'). Here, it is interpreted as appositive, meaning 'requested the designated heir, who is the owner of the thing'.
  2. §36.1.54.1quinondum — A scribal conjunction of two words, which grammatically must be separated into the relative pronoun 'qui' (referring back to 'eum', i.e., the slave) and the adverb 'nondum' ('not yet'). It is nominative singular masculine, serving as the subject within the relative clause.
  3. §36.1.54.1defendi poterit adire cogendum — The impersonal passive 'defendi poterit' ('it can be maintained') takes an accusative with infinitive clause '[eum] adire cogendum [esse]' as its subject, where the gerundive 'cogendum' expresses necessity. The accusative subject 'eum' (referring to the other heir) and the infinitive 'esse' are omitted, meaning 'it can be argued that he ought to be compelled to enter'.
  4. §36.1.54.1quid enim interest, quo iure debitor libertatis et hereditatis idem esse coeperit? — The impersonal expression 'quid interest' ('what difference does it make?') takes the indirect question clause introduced by 'quo iure' as its subject. The verb 'coeperit' is in the subjunctive perfect. 'debitor' is the subject of the clause, and 'idem' is the predicate nominative, both being masculine nominative singular.

Cite this passage

Justinian I, The Digest of Justinian §36.1.54.pr-36.1.54.1. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:36.1.54.pr-36.1.54.1

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