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Justinian I · The Digest of Justinian §40.13.2.pr

Invalid Manumission of Slaves Taken by Force

Passage 6611 of 9271 · Latin

Summary

Marcellus argues that the testamentary manumission of a slave taken by force is invalid, since validating it would deprive the original owner of any legal action against the heir for the deceased's fraud.

[MARCELLUS libro uicensimo quarto digestorum. ] §40.13.2.prSeruum quis per uim a Titio accepit et testamento liberum esse iussit: quamquam soluendo decesserit, non erit ille liber: alioquin fraudabitur Titius, qui non procedente quidem libertate cum herede eius agere potest, at si ad libertatem seruus peruenerit, nullam actionem habiturus est, quia nihil uidebitur heres ex defuncti dolo consecutus.
[MARCELLUS, in the twenty-fourth book of the Digests.] A person took a slave by force from Titius and ordered in his will that the slave should be free. Although he died solvent, that slave will not be free; otherwise, Titius will be defrauded. For Titius, if the freedom indeed does not take effect, can bring an action against the heir of the deceased; but if the slave attains freedom, Titius will have no action, because the heir will be deemed to have obtained nothing from the fraud of the deceased.

Notes

  1. 40.13.2.prsoluendo — The dative form `soluendo` derives from the idiomatic expression `soluendo esse` (to be solvent). Here, modifying the verb `decesserit`, it indicates that the testator died solvent, not insolvent. The manumission is void because the slave was taken by force, regardless of the testator's solvency.
  2. 40.13.2.prnon procedente quidem libertate — An ablative absolute construction where `procedente` (present participle of `procedo`) agrees with `libertate`, functioning as a condition to the main clause `agere potest`. The particle `quidem` introduces a contrast ("if indeed freedom does not take effect, he can sue, but if...") developed in the subsequent `at si...` clause.
  3. 40.13.2.prnihil uidebitur heres ex defuncti dolo consecutus — A personal construction of `uideor` (to seem, be deemed) with a nominative and infinitive (NCI), where `heres` is the subject and `consecutus` (perfect participle with `esse` omitted) functions as the predicate. It means "the heir will be deemed to have obtained nothing."

Cite this passage

Justinian I, The Digest of Justinian §40.13.2.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:40.13.2.pr

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