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Justinian I · The Digest of Justinian §40.5.10.pr-40.5.10.2

Prohibition of Sale and Remedies for Wrongful Alienation

Passage 6420 of 9271 · Latin

Summary

Discusses the granting of freedom resulting from a testamentary prohibition on selling slaves, the application of the senatusconsultum when a slave entitled to freedom is sold, and whether an action is available against a slave delivered to a bona fide purchaser by an insolvent party.

[IDEM libro sexto decimo digestorum. ] §40.5.10.prQuidam in testamento scripserat: 'illum et illum seruos meos uenire nolo'.
[THE SAME, in the sixteenth book of the Digests.] A certain man had written in his will: 'I do not wish my slaves, so-and-so and so-and-so, to be sold'.
si ideo eos noluit uenumdari, ut, si ueneant, ad libertatem perueniant, praestanda erit libertas: nam et illi uidetur libertas relicta, de quo ita scriptum est: 'nolo alii quam tibi seruiat'.
If his reason for not wishing them to be sold was that, if they should be sold, they might attain to freedom, the freedom must be granted; for freedom is also deemed to have been bequeathed to one concerning whom it is written: 'I wish him to serve no other than you'.
secundum haec igitur si quoquo modo uendere temptauerit seruum, confestim peti poterit libertas nec, quominus praestet libertatem, proderit heredi, si eum redemerit, quia semel exstitit condicio.
Therefore, according to these principles, if the heir attempts to sell the slave in any manner whatsoever, freedom can immediately be petitioned for; nor, once the condition has been fulfilled, will it benefit the heir, if he should redeem him, to avoid granting freedom.
§40.5.10.1Is cui libertas debebatur ueniit: si uult ab herede manumitti, non erit interueniendum ei, cum heres praesens erit, emptor latitabit: quoniam poterat uti senatus consulto, ut quasi ex testamento ad libertatem perueniat.
A person to whom freedom was owed has been sold: if he wishes to be manumitted by the heir, no intervention should be made against him when the heir is present and the buyer keeps out of the way; since he could have availed himself of the senatusconsultum so as to attain to freedom as if by the will.
§40.5.10.2Is cui ex fideicommisso libertas debebatur ab eo qui soluendo non erat passus est se bonae fidei emptori tradi: existimas in manumissum constituendam actionem exemplo eius, qui liberi hominis emptorem simulata seruitute decepit? ego quoque adducor, ut putem recte aduersus uenditos actionem competere et magis simile uideri statulibero, qui pridie, quam ex testamento ad libertatem perueniret, idem fieri passus est.
A person to whom freedom was owed under a trust permitted himself to be delivered to a bona fide purchaser by someone who was insolvent: do you think that an action should be granted against the manumitted person on the model of one who deceived the purchaser of a free man by a simulated state of servitude? I too am led to think that an action is rightly available against those who have been sold, and that he seems more similar to a statuliber who, on the day before he was to attain to freedom under the will, permitted the same thing to be done.

Notes

  1. §40.5.10.pruenire — The present active infinitive (with passive meaning) of the verb ueneo (to be sold, synonymous with uenumdari), which is homonymous with but distinct from the infinitive of uenio (to come).
  2. §40.5.10.prquominus praestet libertatem, proderit heredi — The conjunction quominus (lest / from doing) is constructed with the negated verb of benefit (nec... proderit), meaning 'it will not benefit the heir so as to prevent him from granting freedom' (i.e., to help him avoid granting it).
  3. §40.5.10.1non erit interueniendum ei — An impersonal gerundive construction (interueniendum erit), where the dative ei is governed by the verb interuenire, indicating that 'no intervention should be made against him (the slave)' to block his manumission.
  4. §40.5.10.2soluendo non erat — A construction of the verb esse with the dative of the gerundive of purpose or capacity (soluendo), forming the idiomatic expression 'to be solvent'. Here in the past negative, it means 'he was insolvent'.

Cite this passage

Justinian I, The Digest of Justinian §40.5.10.pr-40.5.10.2. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:40.5.10.pr-40.5.10.2

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