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Justinian I · The Digest of Justinian §37.4.17.pr

Possession for Emancipated Son Whose Father Was Adopted

Passage 5745 of 9271 · Latin

Summary

The text presents contrasting opinions by Julian and Marcellus on whether an emancipated son can obtain possession of goods contrary to the will when his father enters into adoption without the son following him into the new family.

[ULPIANUS libro trigesimo quinto ad Sabinum. ] §37.4.17.prSi pater se dederit in adoptionem nec sequatur eum filius emancipatus ab eo antea factus, quia in alia familia sit pater, in alia filius, bonorum possessionem contra tabulas non potest filius eius habere: et ita Iulianus scripsit.
[ULPIANUS in the thirty-fifth book on Sabinus.] If a father should give himself in adoption, and an emancipated son previously made so by him does not follow him, since the father is in one family and the son in another, his son cannot have the possession of goods contrary to the provisions of the will; and so Julian wrote.
Marcellus autem ait iniquum sibi uideri excludi eos a bonorum possessione, cum pater se dedit in adoptionem: ubi enim filius non datur in adoptionem, at pater se dat, nullum patrem filio adsignat: quae sententia non est sine ratione.
Marcellus, however, says that it seems unfair to him for them to be excluded from the possession of goods when the father gives himself in adoption; for where the son is not given in adoption, but the father gives himself, it assigns no father to the son; which opinion is not without reason.

Notes

  1. §37.4.17.prnec sequatur eum — This indicates that when the father enters into adoption (specifically adrogatio, as a sui iuris person), the already emancipated son does not legally enter the new family along with the father. The present subjunctive forms part of the conditional clause introduced by 'si'.
  2. §37.4.17.prexcludi eos — The pronoun 'eos' is plural, referring generally to 'emancipated children' in such a situation, despite the preceding singular 'filius'. The accusative with infinitive clause 'excludi eos...' acts as the subject of 'uideri' or the real subject of the impersonal adjective 'iniquum'.
  3. §37.4.17.prnullum patrem filio adsignat — The subject is not explicitly stated but refers to the action of the father giving himself in adoption ('pater se dat'). Since this act does not assign a new father (or legal grandfather) to the already independent son, Marcellus argues that it is unfair to exclude the son from the possession of goods solely due to the father's adoption.

Cite this passage

Justinian I, The Digest of Justinian §37.4.17.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:37.4.17.pr

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