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Justinian I · The Digest of Justinian §38.2.36.pr

Patronal Claims Against an Insolvent Freedman's Will

Passage 5972 of 9271 · Latin

Summary

In the case where an insolvent freedman died leaving external heirs and omitting the patron, it is asked whether the patron can petition for possession of goods contrary to the will; the answer is affirmative because the inheritance has been accepted, and it argues that the patron's subjective or emotional value in the estate justifies the petition.

[IDEM libro octauo epistularum. ]
[THE SAME, in the eighth book of Letters.]\n\nA freedman who was insolvent died, leaving external heirs, passing over his patron.
§38.2.36.prLibertus, qui soluendo non erat, praeterito patrono extrarios relinquit heredes: quaero, an possit patronus petere contra tabulas bonorum possessionem.
I ask whether the patron can petition for possession of goods contrary to the will.
respondit: cum a scriptis heredibus adita est hereditas, patronus contra tabulas bonorum possessionem petere potest, quia soluendo hereditas est, quae inueniat heredem.
He answered: when the inheritance has been entered upon by the appointed heirs, the patron can petition for possession of goods contrary to the will, because an inheritance is solvent which finds an heir.
et sane absurdum est ius patroni in petenda bonorum possessione contra tabulas aliorum computatione, non iudicio ipsius patroni aestimari auferrique patrono, quod modicum uindicaturus est.
And indeed, it is absurd that the right of the patron in petitioning for possession of goods contrary to the will should be estimated by the calculation of others and not by the judgment of the patron himself, and that what he is about to claim, however modest, should be taken away from the patron.
multi enim casus interuenire possunt, quibus expediat patrono petere bonorum possessionem, quamuis aeris alieni magnitudo, quam libertus reliquerit, facultates patrimonii eius excedat, ueluti si praedia sunt aliqua ex bonis liberti, in quibus maiorum patroni sepulchra sint et magni aestimat patronus bonorum possessione iura pro parte ea ad se pertinere, uel aliquid mancipium, quod non pretio, sed affectu sit aestimandum.
For many cases can occur in which it is advantageous for the patron to petition for possession of goods, even though the amount of debt which the freedman left exceeds the capacity of his estate; as, for instance, if there are some lands among the goods of the freedman in which there are ancestral tombs of the patron, and the patron highly values that the rights pertaining to that share belong to him by the possession of goods, or some slave who is to be valued not by price but by affection.
non ergo ideo minus habere debet ius petendae bonorum possessionis, qui animo potius quam aliorum computatione bona liberti aestimat, cum eo ipso sufficere patrimonium uideri possit, quod et heredem habeat et bonorum possessorem.
Therefore, he who estimates the goods of the freedman by his feelings rather than by the calculation of others ought not to have less right of petitioning for possession of goods, since by that very fact the estate can seem to be sufficient, in that it has both an heir and a possessor of goods.

Notes

  1. 38.2.36.prpraeterito patrono — Ablative absolute using the perfect passive participle of the verb praeterire (to pass over in a will, to omit). It means the patron is passed over or not mentioned in the will.
  2. 38.2.36.prsoluendo — Dative of the gerund, used predicatively to mean 'capable of paying' or 'solvent'. Here with non erat, it denotes that the freedman was insolvent.
  3. 38.2.36.prquae inueniat heredem — A relative clause with the subjunctive inueniat, denoting characteristic or result, meaning 'such as to find an heir'. It explains the legal fiction that since the inheritance has been accepted, it is legally deemed solvent.
  4. 38.2.36.prabsurdum est ius patroni — The clause with the accusative and infinitive (A.C.I.) ius ... aestimari auferrique serves as the subject of the impersonal expression absurdum est (it is absurd). Furthermore, quod modicum uindicaturus est (that which he is about to claim, however modest) functions as the subject of auferri.

Cite this passage

Justinian I, The Digest of Justinian §38.2.36.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:38.2.36.pr

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