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Justinian I · The Digest of Justinian §36.3.18.pr-36.3.18.2

Security for Trusts and Tutor's Stipulation

Passage 5691 of 9271 · Latin

Summary

Scaevola answers queries regarding whether security can be compelled for a fideicommissum despite a prohibition, the restitution of deposited property, and whether a beneficial action lies against a pupil after reaching puberty when his tutor gave security during his absence.

[Scaeuola libro uicensimo nono digestorum. ] §36.3.18.prQuae filium legitimum relinquebat, patrem eundemque collibertum ex asse scripsit heredem fideique eius commisit, ut, quidquid ad eum ex hereditate eius peruenisset, cum moreretur, restitueret filio testatricis nepoti suo, et haec uerba adiecit: 'satis a Seio patre meo exigi ueto'.
[SCAEVOLA in the twenty-ninth book of the Digests.] A certain woman, who left a legitimate son, appointed her father, who was also her fellow freedman, as her sole heir, and charged his good faith that, whatever should come to him from her inheritance, he should, upon his death, restore it to the son of the testatrix, who was his own grandson; and she added these words: "I forbid security to be demanded from Seius, my father." The question was asked, when this Seius was wasting his property and the father of the beneficiary of the fideicommissum feared that the fideicommissum might become empty, whether he could compel the father of the deceased woman to give security on account of the fideicommissum.
quaesitum est, cum iste Seius substantiam suam dissipat et ueretur pater fideicommissarii, ne inane fideicommissum constituatur, an ad satisdationem fideicommissi nomine patrem defunctae compellere possit. respondit secundum ea quae proponerentur non compellendum cauere.
He answered that according to the facts proposed, he should not be compelled to give security.
§36.3.18.1Idem quaesiit: testatricem apud maritum suum, ex quo filium reliquerat, res deposuisse non exacta cautione depositionis: an ea res patri heredi restitui debeat? an uero quoniam emolumentum totius hereditatis ad filium defunctae reuerti deberet, apud maritum remaneret, apud quem dos remansisset? respondit, quod mulieris mansisset nec in dote fuisset, restituendum esse heredi.
The same person asked: the testatrix had deposited certain things with her husband, by whom she had left a son, without demanding any security for the deposit; should these things be restored to her father, the heir? Or should they rather remain with her husband, with whom the dowry had remained, since the benefit of the entire inheritance was to return to the son of the deceased woman? He answered that what had remained the property of the woman and had not been part of the dowry must be restored to the heir.
§36.3.18.2Tutor, qui et coheres pupilli erat, absente pupillo, cum admonuerunt eum legatarii, fideicommissi nomine in solidum ipse cauit.
A tutor, who was also a co-heir of his pupil, in the absence of the pupil, when the legatees demanded it, gave security himself for the whole on account of the fideicommissum.
quaesitum est, an in pupillum adultum factum danda sit utilis actio.
The question was asked whether a beneficial action should be granted against the pupil when he reached the age of puberty.
respondit dandam.
He answered that it should be granted.

Notes

  1. 36.3.18.prQuae — Although appearing to be a connecting relative pronoun at the beginning of the sentence, it functions here as an independent relative clause containing its own antecedent ("A certain woman, who..."), serving as the subject of the main verb `scripsit`.
  2. 36.3.18.prnepoti suo — The reflexive possessive adjective `suo` refers to `patrem` (Seius), the subject of the subordinate clause `restitueret`. Thus, it shows in apposition that the person who is the "son" (filio) from the testatrix's perspective is "his own grandson" (nepoti suo) from her father's perspective.
  3. 36.3.18.prnon compellendum cauere — The accusative gerundive `compellendum [esse]` is complemented by the infinitive `cauere` (to give security). It functions as an impersonal passive expression (or accusative with infinitive taking `patrem` as subject), meaning "that he should not be compelled to give security."
  4. 36.3.18.1Idem quaesiit — The subject `Idem` ("the same person") refers either to the same consultor who posed the previous question or to Scaevola himself presenting another query, which is a formulaic expression in the Digests for introducing sequential cases within the same fragment.

Cite this passage

Justinian I, The Digest of Justinian §36.3.18.pr-36.3.18.2. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:36.3.18.pr-36.3.18.2

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