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Justinian I · The Digest of Justinian §40.5.1.pr

Absconding of Fiduciaries and Granting of Fideicommissary Freedom

Passage 6410 of 9271 · Latin

Summary

This section rules that if some of those obligated to grant freedom under a trust are in hiding, the designated recipient will still obtain freedom as if only those present and those absent for a just cause had been charged, with the share of the hidden person accruing to them.

[ULPIANUS libro quarto decimo ad edictum. ] §40.5.1.prSi quidam ex his, qui fideicommissam libertatem debeant, praesentes sint, alii ex iusta causa absint, alii latitent, perinde is cui fideicommissaria libertas relicta est liber erit, atque si soli, qui adessent et qui ex iusta causa abessent, rogati essent: pars ergo latitantis his proficit.
[ULPIANUS libro quarto decimo ad edictum.] If some of those who owe freedom bequeathed under a trust are present, others are absent for a just cause, and others are in hiding, the person to whom the freedom under a trust was left will be free in the same manner as if only those who were present and those who were absent for a just cause had been requested: therefore, the share of the one in hiding accrues to these.

Notes

  1. §40.5.1.prperinde ... atque si ... rogati essent — The correlation 'perinde ... atque si' expresses a hypothetical comparison ('just as if ...'). The pluperfect subjunctive 'rogati essent' is used here to represent a past contrary-to-fact condition (assuming only those present or excused had been requested, whereas in reality all were).
  2. §40.5.1.prlatitantis — The genitive singular of the present participle 'latitans' (from 'latitare', to hide), used substantively to modify 'pars' (share or portion of the obligation). It means 'the share of the one who is in hiding'.
  3. §40.5.1.prhis proficit — The verb 'proficere' (to be of advantage, to accrue) takes the dative (here 'his', the dative plural of 'hic', referring to those present and those absent for a just cause). It means 'accrues to the benefit of these', indicating that the liability or rights associated with the hidden person's share are transferred to or work in favor of the active participants.

Cite this passage

Justinian I, The Digest of Justinian §40.5.1.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:40.5.1.pr

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