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Justinian I · The Digest of Justinian §37.6.10.pr

Collatio for a Son Who Does Not Seek Possession

Passage 5785 of 9271 · Latin

Summary

Regarding the case where a son under power accepts the inheritance but does not request the possession of goods, Scaevola argues against the literal rule of the Edict, stating that contribution should be made to him by the emancipated son to avoid unfairness.

[SCAEUOLA libro quinto quaestionum. ] §37.6.10.prSi filius in potestate heres institutus adeat et emancipato petente bonorum possessionem contra tabulas ipse non petat, nec conferendum est ei: et ita edictum se habet SCAEUOLA: sed magis sentio, ut, quemadmodum pro parte hereditatem retinet iure eo, quod bonorum possessionem petere posset, ita et conferri ei debeat, utique cum iniuriam per bonorum possessionem patiatur.
[SCAEVOLA, from the fifth book of Questions.] If a son under power, having been instituted as heir, enters upon the inheritance, and when an emancipated son requests the possession of goods contrary to the will, he himself does not request it, there is no need for contribution to be made to him; and the Edict is so formulated (Scaevola says). But I am rather of the opinion that, just as he retains a share of the inheritance by that right because he could have requested the possession of goods, so also contribution ought to be made to him, especially since he suffers injury through the possession of goods.

Notes

  1. §37.6.10.prconferendum est ei — ei is a dative referring to the son under power (filius in potestate), indicating the recipient of the contribution (conferre). Thus, it means 'contribution should be made to him (by the emancipated son)'.
  2. §37.6.10.prSCAEUOLA — This is a peculiar construction where Scaevola's own name is inserted in the third person within his own work. It suggests that a gloss or a citation ('Scaevola says' or 'according to Scaevola') was integrated into the text.
  3. §37.6.10.priure eo, quod bonorum possessionem petere posset — eo... quod introduces an appositive or causal clause meaning 'by that very right, because/that he could...'. The subjunctive posset (imperfect subjunctive) is used to indicate a potential or hypothetical situation (since he did not actually request it).

Cite this passage

Justinian I, The Digest of Justinian §37.6.10.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:37.6.10.pr

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