Humanitext Reader

Justinian I · The Digest of Justinian §36.1.75.pr-36.1.75.1

Cession of Pledge Actions and Preservation of Servitudes

Passage 5629 of 9271 · Latin

Summary

If an heir receives a pledge in connection with lending inheritance money, the trust beneficiary does not gain a direct action but can demand the heir to cede the action. Additionally, upon restoration, mutual servitudes between the heir's and testator's lands remain valid without being extinguished by confusion.

[MAECIANUS libro tertio decimo fideicommissorum. ] §36.1.75.prSi heres pecuniam hereditariam crediderit et in eam causam pignora acceperit, actiones non competunt ei, cui restituta fuerit hereditas, aduersus ipsa pignora.
[MAECIANUS, On Trusts, Book 13] If an heir has lent estate money and has received pledges for that reason, actions against those very pledges are not available to the person to whom the inheritance has been restored.
sed aliqua dubitatio remanebit, si in eum contractum, qui ex defuncto fuerit, interpositus heres, antequam restitueret hereditatem, pignus acceperit.
But some doubt will remain if, in the case of a contract derived from the deceased, the intervening heir has received a pledge before restoring the inheritance.
sed nec sic quidem ipse admitteretur: ex fideicommisso tamen habet aduersus heredem actionem, ut ei cedat pro pignoris commodo actionem.
But not even in this case would he himself be admitted; nevertheless, he has an action based on the trust against the heir, to the end that the heir should cede to him the action for the benefit of the pledge.
§36.1.75.1Cum ex Trebelliano senatus consulto restituitur hereditas, seruitutes, quas mutuo praedia heredis et testatoris habent, nihilo minus ualent.
When an inheritance is restored under the Trebellian senatusconsult, the servitudes which the estates of the heir and of the testator mutually have toward each other remain valid nonetheless.

Notes

  1. §36.1.75.practiones non competunt ei, cui restituta fuerit hereditas, aduersus ipsa pignora — The dative 'ei' serves as the object of the verb 'competunt' used here, and is modified by the relative clause starting with 'cui'. It indicates that even though the inheritance is restored to the trust beneficiary, they do not automatically acquire direct actions in rem against the pledges created independently by the heir.
  2. §36.1.75.prut ei cedat pro pignoris commodo actionem — The 'ut' clause functions as a noun clause specifying the content of the preceding 'actionem' (the action based on the trust). Although 'actionem' appears twice (once in the main clause and again as the object of 'cedat' in the 'ut' clause, which may be a scribal redundancy), the context clearly means that the heir is obliged to cede the action arising from the pledge for the benefit of the trust beneficiary.
  3. §36.1.75.1nihilo minus ualent — When the heir acquires the testator's land by inheritance, there is a risk that the servitudes between that land and their own land would be extinguished by 'confusion' (confusio, merger of ownership). However, because the ownership is separated again upon the restoration of the inheritance under the Trebellian senatusconsult, this phrase explains that they 'remain valid nonetheless'.

Cite this passage

Justinian I, The Digest of Justinian §36.1.75.pr-36.1.75.1. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:36.1.75.pr-36.1.75.1

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.