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Justinian I · The Digest of Justinian §40.5.33.pr-40.5.33.2

Patronal Rights and Penalties for Obstructing Conditional Trust Freedom

Passage 6445 of 9271 · Latin

Summary

Paulus discusses that the son of the deceased can retain patronal rights even under possession of goods against the will, that the Rubrian Senate Consult applies to conditional manumission unless obstructed by the slave, and that a legatee refusing the slave must yield their actions to ensure manumission.

[PAULUS libro tertio fideicommissorum. ] §40.5.33.prSi filius defuncti rogatus fuerit seruum sui patris manumittere, dicendum est posse eum etiam contra tabulas habere et operas imponere: hoc enim potuisset, etiamsi directam libertatem accepisset, quasi patroni filius.
[PAULUS libro tertio fideicommissorum.] If the son of the deceased has been requested to manumit a slave of his father, it must be said that he can hold [the patronal rights] and impose services even against the tablets of the will; for he would have been able to do this even if the slave had received direct freedom, as the son of the patron.
§40.5.33.1Erit Rubriano senatus consulto locus, etiamsi sub condicione libertas data sit, si modo per ipsum seruum non fiet, quo minus condicioni pareat: nec refert in dando an in faciendo an in aliquo casu condicio consistat.
The Rubrian Senate Consult will apply, even if freedom has been granted under a condition, provided only that it is not due to the slave himself that the condition is not fulfilled; and it does not matter whether the condition consists in giving, in doing, or in some chance event.
immo etiam amittit libertum heres, si condicioni impedimentum fecerit, etsi filius defuncti sit, quamuis alio iure habiturus sit libertum.
On the contrary, the heir loses the freedman if he places an obstacle to the condition, even if he is the son of the deceased, although he would have held the freedman by another right.
nonnullam enim et hic poenam patitur: nam et si in seruitutem petierit aut capitis accusauerit, perdit bonorum possessionem contra tabulas.
For here too he suffers some penalty; for if he claims him into slavery or accuses him of a capital crime, he loses the possession of goods against the tablets of the will.
§40.5.33.2Si is cui seruus legatus est rogatus fuerat, ut eum manumitteret, et nolit eum accipere, compellendus est aut actiones suas ei praestare cui seruus uelit, ne intercidat libertas.
If the person to whom a slave was legated had been requested to manumit him, and does not wish to accept him, he must be compelled either [to accept him or] to yield his actions to the person whom the slave wishes, lest freedom be lost.

Notes

  1. §40.5.33.prposse eum etiam contra tabulas habere — The direct object of habere (such as "the freedman" or "patronal rights") is omitted. The phrase contra tabulas is an adverbial shorthand for bonorum possessio contra tabulas (possession of goods against the tablets of the will), indicating that the son can retain his rights as a patron even under this legal status which conflicts with the will.
  2. §40.5.33.1si modo per ipsum seruum non fiet, quo minus condicioni pareat — This utilizes the idiomatic construction per aliquem fieri, quo minus... (to be through someone's fault that... is not done). Here, non fiet is used, meaning "provided only that it is not due to the slave himself that he does not comply with the condition."
  3. §40.5.33.2compellendus est aut actiones suas ei praestare — The conjunction aut usually connects two alternative elements, but here the first alternative (to "accept" the legated slave, accipere) is implied and omitted, meaning "he must be compelled either [to accept] or to yield his actions."

Cite this passage

Justinian I, The Digest of Justinian §40.5.33.pr-40.5.33.2. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:40.5.33.pr-40.5.33.2

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