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Justinian I · The Digest of Justinian §37.7.8.pr

Abstaining Daughter, Gifts, and the Plea of Fraud

Passage 5795 of 9271 · Latin

Summary

Papinian rules that when a daughter, appointed as co-heir on condition of collating her dowry and other gifts, abstains from the inheritance, the brothers' claim for the non-dowry gifts is barred by the plea of fraud, as the father intended her to have either the inheritance or the gifts.

[PAPINIANUS libro undecimo responsorum. ] §37.7.8.prPater nubenti filiae quasdam res praeter dotem dedit eamque in familia retinuit ac fratribus sub condicione, si dotem et cetera quae nubenti tradidit contulisset, coheredem adscripsit.
[PAPINIANUS, Opinions, Book XI.] A father gave certain things to his marrying daughter in addition to her dowry, and retained her in his family, and appointed her as a co-heir to her brothers under the condition that she should collate the dowry and the other things which he had delivered to her upon her marriage.
cum filia se bonis abstinuisset, fratribus res non in dotem datas uindicantibus exceptionem doli placuit obstare, quoniam pater filiam alterutrum habere uoluit.
When the daughter had abstained from the estate, it was held that the plea of fraud stood in the way of her brothers when they claimed the things which had not been given as dowry, because the father wished his daughter to have either one or the other.

Notes

  1. §37.7.8.prse bonis abstinuisset — A reflexive use of 'abstinere' with the ablative 'bonis'. It refers to the exercise of the privilege of abstaining (beneficium abstinendi) granted by the praetor, by which a person under paternal power (heres necessarius) refrains from meddling with the inheritance to avoid liability for its debts, effectively renouncing the succession.
  2. §37.7.8.prfratribus res non in dotem datas uindicantibus exceptionem doli placuit obstare — The impersonal verb 'placuit' takes the accusative and infinitive clause 'exceptionem doli ... obstare' as its subject. The intransitive verb 'obstare' (to stand in the way, bar) governs the dative 'fratribus', which is modified by the present participle 'uindicantibus' (claiming). 'res non in dotem datas' (things not given as dowry) serves as the direct object of 'uindicantibus'. The core structure is: 'it was held that the exception of fraud ('exceptionem doli') stands in the way ('obstare') of the brothers ('fratribus') who are claiming ('uindicantibus') the non-dowry items.'
  3. §37.7.8.pralterutrum — The neuter singular accusative of the pronominal adjective 'alteruter' (either one of the two), serving as the object of the infinitive 'habere'. It denotes either 'becoming a co-heir by performing collation (the inheritance)' or 'retaining the non-dowry gifts received during lifetime by abstaining from the inheritance,' but not both.

Cite this passage

Justinian I, The Digest of Justinian §37.7.8.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:37.7.8.pr

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