Justinian I · The Digest of Justinian §36.3.7.pr

Security for Conditional Legacy to Emancipated Son or Slave

Passage 5680 of 9271 · Latin

Summary

Discusses whether a son or slave, who received a conditional legacy from a father or master appointed as heir, can demand security if emancipated or manumitted before the condition is fulfilled. A middle course is proposed, requiring only a promise (cautio) secured by a hypothec on the heir's own property rather than a full security with third-party guarantors.

[PAULUS libro secundo manualium. ] §36.3.7.prFilio uel seruo sub condicione a patre dominoue herede instituto legatum est.

[PAULUS libro secundo manualium.] A legacy was left under a condition to a son or a slave by a father or master who was appointed heir.

huius legati satis petere non possunt: sed pendente condicione emancipatus uel manumissus si satis petant, quaeritur, an audiendi sint, ne beneficium patris dominiue ipsis onerosum sit, an sibi imputare deberent, qui dederunt eis postulandi aduersus se facultatem.

They cannot demand security for this legacy. But if, while the condition is pending, they are emancipated or manumitted and demand security, the question arises whether they should be heard, lest the benefit of the father or master become burdensome to them, or whether those who gave them the opportunity of making a demand against themselves ought to impute it to themselves.

sed melius est per mediocritatem causam dirimere, ut cautioni tantum cum hypotheca suarum rerum committantur.

But it is better to settle the case by a middle course, so that they (the father or master) are only bound to a promise (cautio) with a hypothec of their own property.

Notes

36.3.7.pra patre dominoue herede instituto — The phrase 'herede instituto' (appointed as heir) functions as an attributive participle modifying the ablative nouns 'patre dominoue', or as an ablative absolute. Since the person obliged to pay the legacy is the heir, it is natural to interpret them together as the ablative complement of the preposition 'a'.
36.3.7.prsibi imputare deberent, qui dederunt eis postulandi aduersus se facultatem. — The subject of 'deberent' and the referent of 'sibi' are the subject of the relative clause 'qui dederunt...' (the father or master). The argument is that those who, by their own voluntary act of emancipation/manumission, gave the recipients the power to make demands against them, ought to impute the resulting risk to themselves (sibi imputare). An interpretation where the emancipated recipients are to blame is ruled out by the agreement of the relative pronoun 'qui'.
36.3.7.prcautioni tantum cum hypotheca suarum rerum committantur. — The subject of 'committantur' is the father and master. It means that, as a middle course, they are only 'committed' (restricted) to a promise (cautio) secured by a hypothec on their own property, instead of being forced to provide full security (satisdatio) requiring third-party guarantors (fideiussores). 'cautioni' is the indirect object (dative) of 'committantur'.

Cite this passage

Justinian I, The Digest of Justinian §36.3.7.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:36.3.7.pr

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