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Justinian I · The Digest of Justinian §38.8.9.pr-38.8.9.1

Possession in the Eighth Degree and Time Limit for Cognates

Passage 6039 of 9271 · Latin

Summary

The difference in the rights to possession of property between an agnate of the eighth degree and a cognate, and the ruling on the commencement of the time limit for claiming possession as a cognate when asserting the invalidity of a will.

[PAPINIANUS libro sexto responsorum. ] §38.8.9.prOctaui gradus adgnato iure legitimi heredis, etsi non extiterit heres, possessio defertur: ut proximo autem cognato, quamuis extiterit heres, non defertur.
[PAPINIANUS, from the sixth book of Responses.] Possession of property is granted to an agnate of the eighth degree by the right of a statutory heir, even if no heir has existed; but it is not granted to him as the nearest cognate, even though an heir has existed.
§38.8.9.1Fratris filius pro parte heres institutus, cum patruum surdum esse contenderet atque ideo testamentum facere non potuisse, possessionem ut proximus cognatus accepit.
A brother's son, having been appointed heir for a share, obtained possession of the property as the nearest cognate, on the ground that his paternal uncle was deaf and therefore could not make a will.
ex die mortis temporis haberi rationem placuit, quia ueri simile non uidebatur tam coniunctum sanguine defuncti ualetudinem ignorasse.
It was held that the period of time should be calculated from the day of death, because it did not seem likely that one so closely related by blood was ignorant of the deceased's condition.

Notes

  1. §38.8.9.prquamuis extiterit heres — If translated literally from the manuscripts ('even though an heir has existed'), it contrasts how possession as a cognate is not granted to an agnate of the eighth degree regardless of the existence of an heir. However, many scholars suggest that 'non' has been omitted and it should read 'quamuis non extiterit heres' ('even though no heir has existed'), because the right of cognates (bonorum possessio unde cognati) does not extend beyond the seventh degree, meaning that even in the absence of any heir, an eighth-degree relative cannot claim it.
  2. §38.8.9.1ex die mortis temporis haberi rationem — An accusative and infinitive clause serving as the subject of the impersonal verb placuit ('it was decided'). The passive infinitive construction temporis haberi rationem ('the calculation of time be made') is modified by ex die mortis ('from the day of death') to indicate the starting point.
  3. §38.8.9.1tam coniunctum sanguine — coniunctum is an accusative adjective (participial adjective) serving as the subject of the infinitive ignorasse ('to have been ignorant'). sanguine is an ablative of specification ('by blood'). The phrase as a whole means 'someone so closely related by blood.'

Cite this passage

Justinian I, The Digest of Justinian §38.8.9.pr-38.8.9.1. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:38.8.9.pr-38.8.9.1

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