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Justinian I · The Digest of Justinian §37.4.15.pr

Waiver of Possession by Pleading Fraud Instead

Passage 5743 of 9271 · Latin

Summary

It is established that if an emancipated son passed over in a will uses a general objection of fraud rather than the specific objection reserving his right to goods when sued for a debt to his father, he is deemed to have waived his right to claim the possession of goods contrary to the will.

[MARCIANUS libro quinto regularum. ] §37.4.15.prSi praeteritus filius emancipatus exceptionem doli mali agenti heredi patris opposuerit de eo quod patri debuit, non posse eum contra tabulas bonorum possessionem petere existimo: nam hoc ipso quasi repudiauit bonorum possessionem.
[MARCIANUS in the fifth book of Rules.] If an emancipated son who has been passed over has opposed an objection of fraud to the heir of his father who is bringing an action concerning what the son owed to his father, I think that he cannot claim the possession of goods contrary to the will; for by this very act he has, as it were, repudiated the possession of goods.
quod ita intellegendum est, si heredem petentem debitum noluerit filius repellere illa exceptione 'si non contra tabulas bonorum possessio filio dari potest', sed magis doli exceptione usus est.
This must be understood in such a way, if the son did not wish to repel the heir demanding the debt by that objection, "unless the possession of goods contrary to the will can be given to the son," but rather made use of the objection of fraud.

Notes

  1. §37.4.15.pragenti heredi patris — The word 'agenti' is the dative singular of the present participle 'agens' (bringing an action), modifying 'heredi patris' (to the heir of the father). The verb 'agere' is used here in its absolute, legal sense of "bringing a lawsuit," which is qualified by the prepositional phrase 'de eo quod...'.
  2. §37.4.15.prquod ita intellegendum est, si — The relative pronoun 'quod' at the beginning refers to the rule stated in the preceding sentence. The correlative structure 'ita... si...' (in such a way, if...) limits the application of the rule to the specific condition introduced by 'si'.
  3. §37.4.15.prsi non contra tabulas bonorum possessio filio dari potest — The text of a legal "objection" (exceptio), which takes the form of a conditional clause ("unless..."). By raising this objection, the defendant could make the plaintiff's claim conditional upon whether the possession of goods contrary to the will cannot be granted to the son.

Cite this passage

Justinian I, The Digest of Justinian §37.4.15.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:37.4.15.pr

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