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Justinian I · The Digest of Justinian §40.4.55.pr-40.4.55.2

Fictional Fulfillment of Conditions and Third-Party Slaves

Passage 6403 of 9271 · Latin

Summary

Discusses the acquisition of freedom when a conditionally free slave cannot fulfill the condition through no fault of their own, noting that while this applies to estate slaves and the heir's own slaves, it does not apply to third-party slaves to be purchased by the heir, in order to avoid inequitable outcomes.

[MAECIANUS libro secundo fideicommissorum. ] §40.4.55.prLibertate sub condicione data huc iam decursum est, ut, si per statuliberum non stet, quominus condicioni pareat, quamuis ne per heredem quidem stet, tamen ad libertatem perueniat.
[MAECIANUS in the second book on Trusts.] Where freedom has been granted under a condition, the point has now been reached that, if it is not due to the conditionally free slave that he does not comply with the condition, even though it is not even due to the heir, he nevertheless attains freedom.
quod credo responderi oportere et si per fideicommissum utique hereditariis seruis libertas data fuerit.
I believe that it ought to be replied that this also applies if freedom has been granted to slaves belonging to the inheritance by way of a trust.
§40.4.55.1Non absurde et de heredis seruis idem dicetur.
Not absurdly, the same will also be said of the heir's own slaves.
§40.4.55.2De his autem, quos redimendos habebit, non iuste dubitamus, siquidem eo casu iniquum erit heredem perinde compelli debere redimere eos, atque si condicio impleta esset, quod forte dominus prohiberet condicioni parere, ut et pretium perciperet et in condicionem non rogaret.
But regarding those whom he will have to purchase, we do not unjustly doubt; for in that case it will be inequitable that the heir should be compelled to purchase them just as if the condition had been fulfilled, since perhaps their master might forbid them to comply with the condition, so that he might both receive the price and not demand the condition.

Notes

  1. §40.4.55.prsi per statuliberum non stet, quominus — The idiom "stare per aliquem, quominus..." means "to be due to someone that ... not...". Here, it indicates a situation where the failure to satisfy the condition is not the fault of the conditionally free slave (statuliber).
  2. §40.4.55.2non iuste dubitamus — "non iuste" is interpreted here as "not unjustly" (i.e., "justly", "with good reason"), fitting the context that it is natural to have doubts about whether the obligation to purchase someone else's slave arises. Although some interpret "non iuste dubitamus" as "we do not justly doubt" (meaning "there is no room for doubt that it does not apply"), the subsequent reasoning "iniquum erit..." (for it would be inequitable...) naturally supports the view that there is a justified doubt.
  3. §40.4.55.2in condicionem non rogaret — "rogare aliquem in condicionem" means to demand or request (of the slave) the fulfillment of the condition. The master does not demand the condition in order to achieve the goal of having the heir purchase the slave and receiving the price (pretium).

Cite this passage

Justinian I, The Digest of Justinian §40.4.55.pr-40.4.55.2. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:40.4.55.pr-40.4.55.2

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