Humanitext Reader

Justinian I · The Digest of Justinian §36.3.12.pr

Invalidity of Conditions Prohibiting Demand for Security

Passage 5685 of 9271 · Latin

Summary

It explains that even if a will specifies a condition that security should not be demanded, it is not legally recognized as a condition, and since public law has decreed the remission of such security, neither the burden of security nor the condition itself exists.

[MARCIANUS libro septimo institutionum. ] §36.3.12.prLicet, ut non petatur cautio, condicio testamento scripta fuerit, non uidetur condicio: et ideo licet desiderauerit quis caueri sibi, nou uidetur condicione defectus, quia postquam remitti talem cautionem iure publico placuit, nec onus cautionis sequitur nec quidem condicio intellegitur.
[MARCIANUS in the seventh book of the Institutes.] Even if a condition has been written in a will that security should not be demanded, it is not regarded as a condition; and therefore, even if someone has desired that security be given to him, he is not regarded as having failed to meet the condition, because after it was decided by public law that such security should be remitted, neither does the burden of security follow, nor indeed is a condition understood to exist.

Notes

  1. 36.3.12.prut non petatur cautio — This clause introduced by the conjunction ut functions as an appositional clause (or a noun clause of purpose/result) explaining the specific content of the noun condicio. It is translated as '(a condition) that security should not be demanded.'
  2. 36.3.12.prnou uidetur condicione defectus — The word 'nou' is a typographical or scribal error for 'non'. 'defectus' is the perfect participle (masculine singular nominative) of 'deficere' (to fail, be wanting), agreeing with the indefinite subject of the clause (quis/is). Together with the ablative 'condicione', it means 'having failed to meet the condition' or 'wanting in the condition.'
  3. 36.3.12.priure publico — An ablative of instrument meaning 'by public law' or 'by decision of the general legal order.' It refers to a mandatory legal rule or common consensus of law that overrides the private will expressed in a testament.

Cite this passage

Justinian I, The Digest of Justinian §36.3.12.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:36.3.12.pr

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