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Justinian I · The Digest of Justinian §36.4.6.pr-36.4.6.1

Security for Usufruct of Money and Termination of Possession

Passage 5698 of 9271 · Latin

Summary

This chunk explains that in a bequest of a usufruct of money (quasi-usufruct), the legatee must still provide security despite any testamentary exemption, and that a person sent into possession to preserve a trust must depart once the trust is paid or secured.

[IULIANUS libro trigensimo octauo digestorum. ] §36.4.6.prSi pecuniae numeratae usus fructus legatus esset et in testamento cautum, ne eo nomine satis daretur, proprietas non est legata, sed legatario permittendum satisdare et usum fructum pecuniae habere: et propemodum in hac propositione nullae praetoris erunt partes, quia, nisi satisdetur, agi cum herede non poterit.
[JULIANUS, book 38 of the Digests] If the usufruct of coined money was bequeathed, and it was provided in the will that security should not be given on that account, the ownership is not bequeathed, but the legatee must be permitted to give security and have the usufruct of the money; and in this case there will be almost no part for the praetor to play, because, unless security is given, no action can be brought against the heir.
§36.4.6.1Qui fideicommissi seruandi causa in possessionem missus est, non prius de possessione decedere debet, quam ei fideicommissum solutum aut eo nomine satisdatum fuerit: nam quod si integra re fieret, in possessionem non mitteretur, id cum offeretur, discedere a possessione debet.
He who has been sent into possession for the sake of preserving a trust ought not to depart from possession before the trust has been paid to him or security has been given on that account; for when that is offered which, if it had been done while the matter was untouched, would have prevented him from being sent into possession, he ought to depart from possession.

Notes

  1. 36.4.6.prpecuniae numeratae usus fructus — Consumable things like money cannot be the object of a strict usufruct. Under 'quasi-usufruct' (quasiusufructus), the legatee can use and consume the money upon giving security (satisdatio) for the return of an equivalent amount. Even if the testator exempted the legatee from providing security, this does not mean the ownership (proprietas) itself was bequeathed; the legatee must still provide security to bring an action against the heir for delivery.
  2. 36.4.6.1quod si integra re fieret — The ablative absolute 'integra re' (literally 'the matter being untouched') here means 'before the sending into possession had actually taken place.' The relative pronoun 'quod' refers to 'id' (the payment or provision of security) in the main clause, meaning 'when that is offered which, had it been done before the sending into possession, would have prevented the possession.'

Cite this passage

Justinian I, The Digest of Justinian §36.4.6.pr-36.4.6.1. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:36.4.6.pr-36.4.6.1

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