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Justinian I · The Digest of Justinian §39.6.28.pr

Release of Debt Mortis Causa and Plea of Fraud

Passage 6278 of 9271 · Latin

Summary

In a case where a deceased person wrote that the debt-documents of his debtor uncle were void as a donation mortis causa, it is asked whether the uncle can defend himself against the heirs' claim with the plea of fraud. Marcellus replies in the affirmative, as the claim runs contrary to the deceased's will.

[MARCELLUS libro singulari responsorum. ] §39.6.28.prAuunculo suo debitori mortis causa donaturus quae debebat ita scripsit tabulae uel chirographum tot ubicumque sunt, inanes esse neque eum soluere debere: quaero, an heredes, si pecuniam ab auunculo defuncti petant, exceptione doli mali tueri se possint.
[MARCELLUS, from the single book of Responses.] A person, intending to make a donation mortis causa to his uncle who was his debtor of what the uncle owed him, wrote as follows: "The accounts or the chirograph, all of them wherever they are, are void, and he is not obliged to pay." I ask whether, if the heirs demand the money from the uncle of the deceased, [the uncle] can protect himself by the plea of fraud.
Marcellus respondit posse: nimirum enim contra uoluntatem defuncti heres petit ab eo.
Marcellus answered that he can; for indeed the heir makes a claim against him contrary to the will of the deceased.

Notes

  1. §39.6.28.prdonaturus — Future active participle expressing the intention or purpose ("intending to give") of the subject of the sentence, who is not explicitly named but referred to later as defuncti ("the deceased").
  2. §39.6.28.prpossint — Although the manuscripts read possint (third-person plural), the context dictates that the person who defends himself (tueri se) by the plea of fraud (exceptione doli mali) is the uncle (auunculus, singular) from whom the money is demanded. Therefore, the verb should logically be singular (possit), or the uncle must be understood as the subject despite the plural verb.

Cite this passage

Justinian I, The Digest of Justinian §39.6.28.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:39.6.28.pr

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