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Justinian I · The Digest of Justinian §40.5.39.pr-40.5.39.1

Freedom of Another's Slave and Greek Testamentary Words

Passage 6451 of 9271 · Latin

Summary

Paulus discusses the validity of the manumission of another's slave by fideicommissum, and argues that the testator's intention to free slaves should be inferred from his Greek testamentary words.

[IDEM libro tertio decimo responsorum. ] §40.5.39.prPaulus respondit, etsi alienus inueniatur seruus, quem ut suum testator ab uno ex heredibus uoluerit manumitti, tamen cogendum eum, qui rogatus est, redimere eum et manumittere, quoniam non putauit similem esse causam libertatis et fideicommissi pecuniarii.
[THE SAME in the thirteenth book of responsa.] Paulus replied that, even if a slave, whom the testator wished to be manumitted by one of the heirs as if he were his own, should be found to belong to another, yet the person who was requested to do so must be compelled to purchase and manumit him, because the law did not consider the case of freedom and that of a pecuniary fideicommissum to be similar.
§40.5.39.1Paulus respondit his uerbis 'πίστευσον δέ μοι, Ζώϊλε, ὅτι τὰς χάριτάς σοι ἀποδώσει ὁ υἱός μου μαρτιάλιος καὶ σοὶ καὶ τοῖς σοῖς παισίν' plenam uoluntatem defuncti contineri circa benefaciendum coniunctis personis Zoilum: qui si serui sint, nihil est gratum his praestari posse quam libertatem ideoque praesidem debere sequi uoluntatem defuncti.
Paulus replied that in these words: 'Trust me, Zoilus, that my son Martialis will return the favor to you, both to you and to your children', there is contained the full intention of the deceased concerning the conferring of a benefit upon the persons connected with Zoilus; and if they should be slaves, there is nothing that can be presented to them more gratifying than freedom, and therefore the governor ought to follow the intention of the deceased.

Notes

  1. §40.5.39.prnon putauit — Although the subject is not explicitly stated, it refers to 'the law' or 'legal principle' which favors freedom (favor libertatis). While some interpret the testator as the subject, the context explains the objective legal difference between the granting of freedom and a pecuniary fideicommissum, suggesting the law or legal reason is the subject.
  2. §40.5.39.1coniunctis personis Zoilum — Although Zoilum is in the accusative form, it is understood as standing for the dative Zoilo depending on coniunctis personis ('persons connected to Zoilus'). This irregular case usage is likely due to a scribal error or case confusion in Latinizing the Greek name Ζώϊλος.

Cite this passage

Justinian I, The Digest of Justinian §40.5.39.pr-40.5.39.1. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:40.5.39.pr-40.5.39.1

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