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Justinian I · The Digest of Justinian §37.9.7.pr-37.9.7.2

Possession of Goods by an Unborn Child and Judicial Inquiry

Passage 5812 of 9271 · Latin

Summary

This passage regulates the possession of goods by an unborn child, discussing the general rule in intestate succession, the necessity of a judicial inquiry when there is a dispute, and the possibility of joint or sole possession.

[IDEM libro quadragensimo septimo ad edictum. ] §37.9.7.prUbicumque ab intestato admittitur quis, illic et uenter admittitur, scilicet si talis fuerit is qui in utero est, ut, si in rebus humanis esset, bonorum possessionem petere posset: ut in omnibus partibus edicti pro superstite habeatur is qui in utero est.
[THE SAME, on the Edict, book 47] Wherever anyone is admitted on intestacy, there the womb is also admitted; that is, provided that the one who is in the womb is of such a character that, if he were already among human affairs, he would be able to petition for the possession of the goods: so that in all parts of the Edict, he who is in the womb is regarded as a survivor.
§37.9.7.1Interdum non passim, sed cum causae cognitione mitti uenter in possessionem debet, si qui sit, qui controuersiam referat.
Sometimes, the womb ought to be put into possession not indiscriminately, but only after an inquiry into the case, if there should be someone who raises a dispute.
sed hoc tantum ad eum uentrem erit referendum, qui cum liberis admittitur.
But this will apply only to that womb which is admitted along with the children.
ceterum si mittatur unde legitimi uel qua alia ex parte, dicendum est non esse causae cognitionem necessariam: nec enim aequum est in tempus pubertatis uentrem uesci de alieno in tempus pubertatis dilata controuersia.
Otherwise, if the womb is put into possession under the provision for statutory heirs or from any other section, it must be said that an inquiry into the case is not necessary; for it is not equitable that, while the dispute is deferred until the age of puberty, the womb should be supported from another's property until the age of puberty.
sed enim placet omnes controuersias, quae quasi status controuersiam continent, in tempus pubertatis differri, sed non ut in possessione sit status controuersia dilata, sed sine possessione.
However, it is accepted that all disputes which involve what is, as it were, a dispute over status, should be deferred until the age of puberty, yet not so that the dispute over status is deferred while in possession, but rather without possession.
§37.9.7.2Quamuis autem praetor uentrem in possessionem mittat cum his, quibus possessionem dederit, attamen etiam solus uenter admittetur ad bonorum possessionem.
Moreover, although the praetor puts the womb into possession along with those to whom he has granted possession, nevertheless the womb will also be admitted to the possession of the goods alone.

Notes

  1. §37.9.7.prsi in rebus humanis esset, bonorum possessionem petere posset — A counterfactual conditional clause using the imperfect subjunctive (esset ... posset). It expresses a hypothetical situation contrary to present fact: "if [the unborn child] were already among human affairs, he would be able to petition for the possession of the goods." This entire conditional structure is embedded within the consecutive clause introduced by talis ... ut.
  2. §37.9.7.1dilata controuersia — An ablative absolute construction consisting of the noun controuersia and the perfect passive participle dilata (from differo). Along with the phrase in tempus pubertatis, it expresses an attendant circumstance or condition: "the dispute being deferred until the age of puberty."
  3. §37.9.7.1in tempus pubertatis uentrem uesci de alieno in tempus pubertatis dilata controuersia — The phrase in tempus pubertatis (until the age of puberty) is repeated twice in the same sentence. The first occurrence modifies the infinitive uesci (to be supported from another's property) in the accusative-with-infinitive construction, while the second modifies the ablative absolute dilata controuersia. While possibly a scribal error, syntactically each modifies its respective verbal element.

Cite this passage

Justinian I, The Digest of Justinian §37.9.7.pr-37.9.7.2. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:37.9.7.pr-37.9.7.2

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