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Justinian I · The Digest of Justinian §36.1.62.pr

Mistaken Trust Restitution by Patron and Non-Transfer of Actions

Passage 5615 of 9271 · Latin

Summary

In a case where a patron mistakenly restored a part of the inheritance which he was not obligated to restore because it fell within his due share, it is explained that the actions do not pass under the Trebellian senatusconsultum and he can recover it on the ground of mistake.

[IDEM libro undecimo quaestionum. ] §36.1.62.prPatronus ex debita portione heres institutus sextam partem restituere rogatus restituit: non transeunt ex Trebelliano actiones, quoniam non fuit debitum quod restituit, et ideo si per errorem fecit, etiam repetetur.
[THE SAME, Questions, Book 11] A patron, having been appointed heir for his due share, was requested to restore a sixth part and restored it: the actions under the Trebellian senatusconsultum do not pass, since what he restored was not due, and therefore, if he did so by mistake, it will even be recovered.

Notes

  1. §36.1.62.prex debita portione — Meaning 'on the basis of the due share'. It refers to the indefeasible statutory share (forced share) that a patron has in the inheritance of a freedman. Since he is not obligated to restore any trust-bequest out of this share, the logic leads to the subsequent 'non fuit debitum' (was not due).
  2. §36.1.62.prquod restituit — A structure where the antecedent (such as the demonstrative pronoun 'id') of the relative pronoun 'quod' is omitted (equivalent to 'id quod restituit'), functioning within the 'quoniam' clause as the subject noun clause ('what he restored') for 'non fuit debitum' (predicate nominative).
  3. §36.1.62.prrepetetur — The third-person singular future passive of the verb 'repetere' (to recover, to demand back). The subject is the omitted 'what was restored'. It legally expresses that a claim for the return of undue payment (condictio indebiti) is available as a payment made by mistake (solutio indebiti).

Cite this passage

Justinian I, The Digest of Justinian §36.1.62.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:36.1.62.pr

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