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Justinian I · The Digest of Justinian §39.6.38.pr

Distinction between Gifts Mortis Causa and Acquisitions

Passage 6288 of 9271 · Latin

Summary

The text explains the legal distinction between a donation mortis causa and the broader concept of "acquisition mortis causa," using concrete examples where a third party receives money as a condition for a slave's manumission in a will or for an heir's institution.

[MARCELLUS libro primo ad legem Iuliam et Papiam. ] §39.6.38.prInter mortis causa donationem et omnia, quae mortis causa quis ceperit, est earum rerum differentia: nam mortis causa donatur quod praesens praesenti dat, mortis causa capi intellegitur et quod non cadit in speciem donationis.
[MARCELLUS, On the Lex Iulia et Papia, Book 1.] Between a donation mortis causa and all things which anyone receives mortis causa, there is a difference between these things: for that is donated mortis causa which a person present gives to another who is present, whereas it is understood that what does not fall under the category of a donation is also received mortis causa.
etenim cum testamento quis suo Pamphilum seruum suum liberum esse iussit, si mihi decem dederit, nihil mihi donasse uidebitur, et tamen, si accepero a seruo decem, mortis causa accepisse me conuenit.
For indeed, when someone in his testament has ordered his slave Pamphilus to be free if he should give me ten, he will not be deemed to have donated anything to me; and yet, if I should receive ten from the slave, it is agreed that I have received it mortis causa.
idem accidit, quod quis sit heres institutus, si mihi decem dederit: nam accipiendo ab eo, qui heres institutus est, condicionis explendae eius causa, mortis causa capio.
The same happens when someone is instituted as heir on the condition that he should give me ten: for by receiving from him who has been instituted as heir, for the purpose of fulfilling that condition, I acquire mortis causa.

Notes

  1. §39.6.38.prpraesens praesenti — By juxtaposing the same adjective praesens (present) in the nominative and dative cases, the text emphasizes the direct face-to-face relationship between the donor and the recipient. This expression highlights that a donation mortis causa has the character of an agreement made directly between living parties.
  2. §39.6.38.prconuenit — Used impersonally to mean "it is agreed" or "it is generally accepted." The accompanying accusative-with-infinitive clause me ... accepisse (that I have received) functions as its grammatical subject.
  3. §39.6.38.prquod quis sit heres institutus — The conjunction quod introduces a noun clause that specifically explains or exemplifies the pronoun idem (the same thing) in the main clause ("namely, that someone is instituted as heir..."). The subjunctive present sit is used because it presents a hypothetical case.

Cite this passage

Justinian I, The Digest of Justinian §39.6.38.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:39.6.38.pr

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