Justinian I · The Digest of Justinian §37.11.5.pr-37.11.5.1

Protection and Legacy Duties of Possessors upon Failed Condition

Passage 5837 of 9271 · Latin

Summary

This text discusses how the legal protection of a possessor and their obligation to pay legacies are affected when someone is instituted heir under a condition and the condition fails after they have accepted possession of goods.

[IDEM libro quarto disputationum. ] §37.11.5.prSi sub condicione heres quis institutus sit et accepta bonorum possessione secundum tabulas condicio defecerit, interdum euenit, ut res possessori concedenda sit, ut puta si filius sit emancipatus sub condicione heres institutus: nam si defecerit condicio, attamen secundum tabulas bonorum possessionem SECUNDUM TABULAS eum accipere Iulianus scribit.

[THE SAME, in the fourth book of his Disputations.] If anyone has been instituted heir under a condition, and after having accepted the possession of goods in accordance with the will, the condition fails, it sometimes happens that the property should be granted to the possessor, as, for instance, if an emancipated son has been instituted heir under a condition: for Julian writes that, even if the condition fails, he nevertheless receives the possession of goods in accordance with the will.

sed et si is fuerit, qui ab intestato bonorum possessor futurus esset, tuendum esse scripsit, et hoc iure utimur.

But he also wrote that, if he were one who would have been the possessor of goods in an intestacy, he should be protected, and we observe this rule of law.

§37.11.5.1Uidendum, an legata ab eis debeantur.

It must be considered whether legacies are due from them.

et filius quidem quasi contra tabulas bonorum possessione accepta rem habere uidetur, ceteri uero quasi ab intestato: et ideo filius liberis parentibusque legata relicta solis praestare cogetur, ceteris non plane ei, cui ab intestato fideicommissum relictum est, erit praestandum, quasi uideatur hoc ipso fraudatus, quod ex testamento petita sit bonorum possessio.

And indeed, the son is deemed to hold the property as if he had accepted the possession of goods contrary to the will, whereas the others as if by intestacy: and therefore the son will be compelled to pay only those legacies left to his children and parents, and not to others; but clearly, payment must be made to him to whom a fideicommissum was left under an intestacy, as if he would seem to be defrauded by this very fact, that the possession of goods was petitioned for under the will.

Notes

§37.11.5.prtuendum esse — An accusative-with-infinitive construction subordinate to the verb `scripsit`, where the subject accusative pronoun `eum` is omitted. It refers back to the antecedent `is` (the possessor in an intestacy). It means 'he should be protected' (i.e., allowed to retain the possession of the property).
§37.11.5.1ceteris non plane ei — A passage containing a strong ellipsis and contrast. `ceteris non` implies 'to others he is not (compelled to pay)', supplying the verb from the preceding clause. On the other hand, `plane ei... erit praestandum` introduces a contrast ('but clearly, payment must be made to him who...'), where `ei` acts as the dative object of the impersonal passive gerundive phrase `erit praestandum`.

Cite this passage

Justinian I, The Digest of Justinian §37.11.5.pr-37.11.5.1. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:37.11.5.pr-37.11.5.1

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