Humanitext Reader

Justinian I · The Digest of Justinian §40.12.25.pr-40.12.25.2

Bequests, Renewed Claims, and Acquisitions during Freedom Suits

Passage 6590 of 9271 · Latin

Summary

This section discusses the validity of bequests, specifically options, to a slave during a freedom suit, the possibility of renewing a claim for freedom upon the fulfillment of a condition, and whether a master can still acquire property and possession through a slave whose status is being litigated.

[GAIUS ad edictum praetoris urbani titulo de liberali causa. ] §40.12.25.prSi cui de libertate litiganti optio legata sit, quaecumque hereditate ei relicta dicuntur, eadem et de optione tractari possunt.
[GAIUS, on the Edict of the Urban Praetor, under the title "On Suits concerning Freedom".] If an option is bequeathed to someone who is litigating for his freedom, whatever is said concerning things left to him by inheritance can also be applied to the option.
§40.12.25.1Interdum ex integro datur ad libertatem proclamatio, ueluti eius, qui adfirmat ideo se primo iudicio uictum, quod statuta libertas nondum ei optigerat, quam nunc dicit sibi optigisse.
Sometimes a petition for freedom is granted anew, as in the case of one who asserts that the reason he was defeated in the first trial was that his designated freedom had not yet accrued to him, which he now says has accrued to him.
§40.12.25.2Licet uulgo dicatur post ordinatum liberale iudicium hominem, cuius de statu controuersia est, liberi loco esse, tamen, si seruus sit, certum est nihilo minus eum, quod ei tradatur uel stipuletur, perinde domino adquirere atque si non de libertate eius quaerebatur.
Although it is commonly said that after a lawsuit concerning freedom has been instituted, the person whose status is in dispute is in the position of a free man, nevertheless, if he is indeed a slave, it is certain that whatever is delivered to him or promised to him by stipulation, he acquires for his master just as if there were no question about his freedom.
tantum de possessione uidebimus, cum ipsum post litem ordinatam desinat dominus possidere: sed magis est, ut adquirat, licet ab eo non possideatur.
We shall only have to consider the matter of possession, since the master ceases to possess him after the lawsuit is instituted; but the better opinion is that he does acquire, although he is not possessed by him.
et cum placuit per fugitiuum quoque nos possessionem adquirere posse, quid mirum etiam per hunc, de quo quaeramus, adquiri?
And since it is agreed that we can also acquire possession through a runaway slave, what wonder is it that it is also acquired through this person whose status we are questioning?

Notes

  1. §40.12.25.proptio legata sit — "If an option is bequeathed." An "optio" refers to a legacy giving the legatee the right to choose specific slaves or items from the estate.
  2. §40.12.25.2perinde domino adquirere atque si — "acquires for his master just as if [there were no question...]". A construction using the comparative/hypothetical conjunction "perinde ... atque si". In the subordinate clause, the indicative imperfect "quaerebatur" is used instead of the subjunctive, indicating that although a dispute over status is indeed active as a matter of fact, the legal consequence of acquisition operates just as if no such dispute existed.
  3. §40.12.25.2sed magis est, ut adquirat — "but the better opinion is that he does acquire." An impersonal construction "magis est, ut" (+ subjunctive "adquirat") commonly used by jurists to assert that "it is more correct to hold that...". The subject of "adquirat" is the slave (eum), meaning he effectively acquires property for the benefit of his master.

Cite this passage

Justinian I, The Digest of Justinian §40.12.25.pr-40.12.25.2. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:40.12.25.pr-40.12.25.2

Please note the AI-draft status of the translation and the date accessed.

Translation, notes and summary are AI-generated drafts, revised through reader feedback.