Humanitext Reader

Justinian I · The Digest of Justinian §36.2.17.pr

Vesting of Legacies to Bequeathed Slaves and Catonian Rule

Passage 5658 of 9271 · Latin

Summary

Julianus discusses the vesting of a legacy left to a bequeathed slave at the entry of inheritance, explaining why the Catonian rule does not invalidate it if the slave is manumitted, by drawing an analogy to a legacy left to a father with his son instituted as heir.

[IDEM libro trigensimo sexto digestorum. ] §36.2.17.prCum legato seruo aliquid legatur, dies eius legati quod seruo datur non mortis tempore, sed aditae hereditatis cedit: et ideo impedimento non est regula iuris, quo minus manumisso legatum debeatur, quia etsi confestim pater familias moreretur, non in eiusdem personam et emolumentum legati et obligatio iuris concurreret.
[THE SAME, thirty-sixth book of the Digest.] When something is bequeathed to a slave who has been bequeathed, the right to that legacy which is given to the slave vests not at the time of death, but when the inheritance is entered upon: and therefore the rule of law is no impediment to the legacy being owed to him after he has been manumitted, because even if the paterfamilias were to die immediately, both the benefit of the legacy and the legal obligation would not concur in the person of the same individual.
perinde igitur est hoc, de quo quaeritur, ac si filio herede instituto patri legatum esset: quod consistere intellegitur eo, quod, quamuis statim pater familias moriatur, potest emancipatus adire hereditatem, ut patri legatum debeat
Therefore, this case in question is just as if a legacy had been left to a father, his son having been instituted heir: which is understood to stand valid for this reason, that, although the paterfamilias should die immediately, the son, having been emancipated, can enter upon the inheritance, so that he owes the legacy to his father.

Notes

  1. §36.2.17.prdies... cedit — A technical legal term in Roman law meaning the right to a legacy vests (becomes established). It is distinguished from "dies venit" (the time when the legacy can be demanded).
  2. §36.2.17.prregula iuris — Refers here to the "Catonian Rule" (Regula Catoniana), according to which a legacy that would be invalid if the testator died immediately after making the will cannot become valid by any subsequent event. In this case, since the vesting of the legacy (dies cedit) is deferred until the entry of the inheritance, if the slave is manumitted (manumissio) before then, there is no merger (confusio) of benefit and obligation in the same person upon the testator's death, thus avoiding the rule and remaining valid.
  3. §36.2.17.prquo minus — Introduced by a negative expression of hindrance or prevention (here `impedimento non est`, meaning there is no impediment), it forms a noun clause meaning 'to prevent [someone] from [doing something]' or 'so that... not'.
  4. §36.2.17.prperinde igitur est hoc... ac si — `perinde... ac si` is used with the subjunctive (here the imperfect subjunctive `esset`) to form a comparative conditional clause meaning 'just as if' or 'exactly as if'.

Cite this passage

Justinian I, The Digest of Justinian §36.2.17.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:36.2.17.pr

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