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Justinian I · The Digest of Justinian §36.1.72.pr-36.1.72.2

Remedies for Damage to the Trust Estate and Actions

Passage 5626 of 9271 · Latin

Summary

This passage discusses the sufficiency of direct actions when a trust inheritance returns to the heir, the different legal remedies for the heir's damage to the inheritance before and after its restoration, and the calculation of time limits for temporary actions within the inheritance.

[POMPONIUS libro secundo fideicommissorum. ] §36.1.72.prSi heres institutus Titio rogatus fuerit restituere hereditatem et rursus Titius heredi post tempus, sufficiunt directae actiones heredi.
[POMPONIUS, On Trusts, Book 2] If an appointed heir is requested to restore the inheritance to Titius, and Titius in turn is requested to restore it to the heir after a period of time, direct actions are sufficient for the heir.
§36.1.72.1Si heres antequam fideicommissam hereditatem restitueret, alienauerit quid ex hereditate aut seruum hereditarium manumiserit aut ruperit quid uel fregerit uel usserit, non competit in eum ulla ciuilis actio restituta postea hereditate ex Trebelliano senatus consulto, sed ex fideicommissi causa erit hoc quod deperierit persequendum.
If the heir, before restoring the trust inheritance, alienates anything from the inheritance, or manumits a hereditary slave, or damages, breaks, or burns anything, no civil action lies against him under the Trebellian senatusconsultum after the inheritance has been restored; but whatever has been lost must be sued for on the ground of the trust.
sin uero post restitutam hereditatem horum quid admiserit heres, dicendum est lege Aquilia cum eo agi posse, si seruum forte hereditarium aut uulnerauerit aut occiderit.
If, however, the heir commits any of these acts after the inheritance has been restored, it must be said that he can be sued under the Aquilian law, if, for instance, he should wound or kill a hereditary slave.
§36.1.72.2Si temporalis actio in hereditate relicta fuerit, tempus, quo heres experiri ante restitutam hereditatem potuit, imputabitur ei cui restituta fuerit.
If a temporary action is left in the inheritance, the time during which the heir could have brought the action before restoring the inheritance shall be charged against the person to whom it has been restored.

Notes

  1. 36.1.72.pret rursus Titius heredi post tempus — In correspondence with the preceding clause `Si heres institutus Titio rogatus fuerit restituere`, the verb phrase `rogatus fuerit restituere` is omitted after `Titius`, and the noun `hereditatem` is omitted after `heredi`. This outlines a sequential trust where the inheritance goes from the heir to Titius and then back to the heir.
  2. 36.1.72.prsufficiunt directae actiones heredi — Under the Senatusconsultum Trebellianum, actions are transferred from the trustee (the heir) to the beneficiary, who normally receives 'useful actions' (utiles actiones). However, when the inheritance eventually returns to the original heir, the heir does not need useful actions as a beneficiary but can rely on their original 'direct actions' (directae actiones).
  3. 36.1.72.1non competit in eum ulla ciuilis actio ... ex fideicommissi causa erit hoc quod deperierit persequendum — If the heir disposes of or damages the inheritance before restoration, the beneficiary cannot directly bring general civil actions (such as the Aquilian action) against the heir after restoration, because the heir was the legal owner at the time of the acts. Therefore, the loss in value must be pursued and settled through the action based on the trust itself (ex fideicommissi causa) as a breach of trust obligations.
  4. 36.1.72.2tempus ... imputabitur ei cui restituta fuerit — The verb `imputabitur` is used in the sense of being charged or reckoned against. If a right of action included in the inheritance is subject to a time limit, the time during which the heir could have brought the action before the restoration (but let pass) is deducted from the time remaining for the beneficiary to whom the inheritance has been restored.

Cite this passage

Justinian I, The Digest of Justinian §36.1.72.pr-36.1.72.2. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:36.1.72.pr-36.1.72.2

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