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Justinian I · The Digest of Justinian §40.11.5.pr-40.11.5.1

Patronal Consent and Retroactive Freeborn Status

Passage 6565 of 9271 · Latin

Summary

This passage states that a freedman can be restored to his birthrights by the Emperor with the patron's consent, and that such a restored freedman is legally treated as if he had been freeborn without any stain of slavery.

[MODESTINUS libro septimo regularum. ] §40.11.5.prPatrono consentiente debet libertus ab imperatore natalibus restitui: ius enim patroni hoc impetrato ammittitur.
[BY MODESTINUS, from the seventh book of Rules.] A freedman ought to be restored to his birthrights by the Emperor with the consent of his patron; for the right of the patron is lost once this is obtained.
§40.11.5.1Libertinus, qui natalibus restitutus est, perinde habetur, atque si ingenuus factus medio tempore maculam seruitutis non sustinuisset.
A freedman who has been restored to his birthrights is regarded in the same way as if, having been made freeborn, he had not sustained the stain of slavery during the intervening time.

Notes

  1. §40.11.5.prhoc impetrato — Ablative absolute. The neuter pronoun 'hoc' refers to obtaining the privilege of the restoration of birthrights from the Emperor. Since this privilege extinguishes the patron's rights, the patron's consent is required.
  2. §40.11.5.1perinde habetur, atque si — A comparative conditional construction meaning 'is regarded in the same way as if...'. It takes the pluperfect subjunctive 'sustinuisset', establishing a legal fiction contrary to past fact.
  3. §40.11.5.1ingenuus factus — Perfect passive participle agreeing with the subject 'libertinus'. It means 'having been made freeborn'. It expresses how a person who was originally a freedman is retrospectively treated as if he had been born free, including during the intervening period.

Cite this passage

Justinian I, The Digest of Justinian §40.11.5.pr-40.11.5.1. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:40.11.5.pr-40.11.5.1

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