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Justinian I · The Digest of Justinian §38.2.35.pr

Possession Contrary to the Will and Usufruct

Passage 5971 of 9271 · Latin

Summary

This text discusses the restoration of a tract of land and the treatment of its usufruct when the son of the original testator claims possession contrary to the will after the death of the freedman-heir who was charged with the usufruct.

[IDEM libro tertio epistularum. ] §38.2.35.prA liberto suo herede Seius usum fructum fundi Maeuio legauit: is libertus Maeuio hercde relicto decessit: quaero, cum contra tabulas testamenti petierit filius Seii aduersus Maeuium, utrum deducto usu fructu pars debita ei fundi restituenda sit an solida, quia eorum bonorum acceperit possessionem, quae liberti cum moreretur fuerunt.
[THE SAME, in the third book of Letters.] Seius bequeathed the usufruct of a tract of land to Maevius, to be provided by his freedman who was his heir. This freedman died, leaving Maevius as his heir. I ask, when the son of Seius has petitioned for possession contrary to the will against Maevius, whether the share of the land due to him should be restored to him with the usufruct deducted, or in its entirety, because he has received possession of those goods which belonged to the freedman when he died.
respondit: usum fructum in causam pristinam restituendum puto.
He answered: I think that the usufruct should be restored to its original condition.
optimum itaque erit arbitrum postulare, ut arbitrio eius usus fructus in integrum restituatur.
Therefore, it will be best to request an arbiter, so that by his decision the usufruct may be restored to its original state.

Notes

  1. §38.2.35.prA liberto suo herede — herede is in apposition to liberto suo. The preposition a indicates the person (the freedman as heir) who is charged with the duty of delivering the legacy (legavit).
  2. §38.2.35.prcontra tabulas testamenti — This refers to the legal institution of "possession of goods contrary to the will" (bonorum possessio contra tabulas). The term bonorum possessionem is understood as the object of petierit.
  3. §38.2.35.prutrum deducto usu fructu pars debita ei fundi restituenda sit an solida — An alternative indirect question introduced by utrum ... an ..., serving as the object of quaero. deducto usu fructu is an ablative absolute. solida agrees with pars (feminine singular), meaning the "undiminished" or "entire" share, free from the burden of the usufruct.
  4. §38.2.35.prusum fructum in causam pristinam restituendum — An accusative with infinitive clause with esse omitted after the gerundive restituendum, acting as the object of puto. in causam pristinam is a legal idiom meaning "to its former legal status or condition."

Cite this passage

Justinian I, The Digest of Justinian §38.2.35.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:38.2.35.pr

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