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Justinian I · The Digest of Justinian §38.7.5.pr-38.7.5.1

Distinction of Agnates and Cognates and Potential Sui Heredes

Passage 6029 of 9271 · Latin

Summary

Modestinus explains the definitional difference between agnates and cognates with examples, and states that as long as there is a possibility of a self-successor (such as an unborn child or a captured son), consanguineous siblings have no claim to the inheritance.

[MODESTINUS libro tertio pandectarum. ] §38.7.5.prInter adgnatos et cognatos hoc interest, quod in adgnatis et cognati continentur, in cognatis non utique et adgnati.
Between agnates and cognates there is this difference, that cognates are also included among agnates, but agnates are not necessarily included among cognates.
uerbi gratia patris frater, id est patruus, et adgnatus est et cognatus, matris autem frater, id est auunculus, cognatus est, adgnatus non est.
For example, a father's brother, that is, a paternal uncle, is both an agnate and a cognate, but a mother's brother, that is, a maternal uncle, is a cognate, and is not an agnate.
§38.7.5.1Quamdiu spes est suum heredem aliquem defuncto existere, tamdiu consanguineis locus non est: puta si defuncti uxor praegnas sit aut defuncti filius apud hostes sit.
As long as there is hope that some self-successor to the deceased will exist, so long is there no room for consanguineous siblings: for example, if the wife of the deceased is pregnant, or if the son of the deceased is in the hands of the enemy.

Notes

  1. §38.7.5.prnon utique — This phrase means "not necessarily" or "not in every case", expressing a partial negation. It indicates the relationship of inclusion: all agnates (adgnati) are also cognates (cognati), but not all cognates are necessarily agnates.
  2. §38.7.5.1suum heredem aliquem defuncto existere — An accusative and infinitive clause expressing the content of the noun "spes". "aliquem suum heredem" is the subject accusative of the infinitive "existere", and the dative "defuncto" is a dative of reference or possession ("to exist for the deceased").
  3. §38.7.5.1apud hostes sit — Meaning "is in the hands of the enemy (as a captive)". In Roman law, a citizen captured by the enemy temporarily loses his civil rights, but upon his return, his rights are retroactively restored via the "right of postliminium" (ius postliminii). Therefore, as long as he is alive in captivity, there remains a "hope" (spes) of his return as a self-successor (suus heres), which prevents the inheritance from passing to the next tier of heirs (consanguinei).

Cite this passage

Justinian I, The Digest of Justinian §38.7.5.pr-38.7.5.1. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:38.7.5.pr-38.7.5.1

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