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Justinian I · The Digest of Justinian §40.15.2.pr-40.15.2.2

Protection of Children's Freedom Five Years after Parental Death

Passage 6622 of 9271 · Latin

Summary

Papinian states that children's freedom cannot be contested based on their parents' status if the latter went unchallenged for five years after death, ruling that because this protection is of public interest, wards cannot claim the privilege of restitution, and that a previously abandoned lawsuit does not invalidate the five-year prescription.

[PAPINIANUS libro quarto decimo responsorum. ] §40.15.2.prNon esse libertatis quaestionem filiis inferendam propter matris uel patris memoriam post quinquennium a morte non retractatam conuenit.
[PAPINIAN, in the Fourteenth Book of Opinions.] It is agreed that a dispute regarding freedom must not be brought against children on account of the memory of their mother or father, which has not been contested within five years from their death.
§40.15.2.1Nec in ea re, quae publicam tutelam meruit, pupillis agentibus restitutionis auxilium tribuendum est, quod quinque annorum tempus, cum tutores non haberent, excesserit.
Nor, in a matter which has deserved public protection, should the aid of restitution be granted to wards who are suing, on the ground that the five-year period expired while they did not have guardians.
§40.15.2.2Praescriptio quinque annorum, quae statum defunctorum tuetur, specie litis ante mortem illatae non fit irrita, si ueterem causam desistente qui mouit longo silentio finitam probetur.
The five-year prescription, which protects the status of deceased persons, is not rendered ineffective by the mere appearance of a lawsuit brought before death, if it is proved that the old case was ended through long silence, the person who initiated it having abandoned it.

Notes

  1. §40.15.2.prmemoriam post quinquennium a morte non retractatam — The noun "memoriam" is modified by the perfect passive participle "non retractatam" (not challenged). In Roman legal terminology, "memoria" (memory) refers to the posthumous legal status of the deceased; hence the phrase means that the status of the parents was not contested within five years after their death.
  2. §40.15.2.1ea re, quae publicam tutelam meruit — "A matter which has deserved public protection" refers to the legal principle that securing the status of deceased persons after five years is a matter of public policy and order. Because of this overriding public interest, the privilege of restitution (restitutio in integrum) normally granted to minors (pupilli) is exceptionally denied in this case.
  3. §40.15.2.1pupillis agentibus — Dative plural with a present participle. In a construction with the gerundive of obligation "tribuendum est" (must be granted), it functions either as the dative of agent or as the dative of reference indicating the persons to whom the aid is to be denied.
  4. §40.15.2.2specie litis ante mortem illatae — "specie" (appearance, pretext, ablative singular) is combined with "litis" (lawsuit, genitive singular) and its modifying perfect passive participle "illatae" (brought). It refers to the mere appearance or pretext of a lawsuit brought before death (but in fact abandoned), functioning as an ablative of means or cause.
  5. §40.15.2.2desistente qui mouit — An ablative absolute construction where the entire relative clause "qui mouit" (he who initiated [the suit]) acts as the logical subject of the present participle "desistente" (withdrawing, abandoning, ablative singular). This structure, where a relative clause serves as the nominal element in an ablative absolute, is characteristic of Juristic and Late Latin.

Cite this passage

Justinian I, The Digest of Justinian §40.15.2.pr-40.15.2.2. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:40.15.2.pr-40.15.2.2

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