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Justinian I · The Digest of Justinian §40.5.55.pr-40.5.55.1

Relief for Children Born During Delayed Acceptance

Passage 6468 of 9271 · Latin

Summary

The passage discusses the legal remedies for a child born to a female slave who was to be freed, covering cases of delayed inheritance acceptance both under fideicommissary and direct testamentary manumission.

[MARCIANUS libro quarto regularum. ] §40.5.55.prSed et si non data opera tardius adierit, sed dum de adeunda hereditate deliberat, idem dictum est.
[MARCIANUS in the fourth book of Rules.] But also, if he has entered upon the inheritance later, not through deliberate delay, but while he is deliberating about entering upon the inheritance, the same has been said.
et si postea cognouit se heredem institutum, quam ancilla peperit, placet hoc quoque casu subueniendum esse: hoc tamen casu ipse manumittere debebit, non matri tradere.
And if he learned that he had been instituted heir after the female slave gave birth, it is held that in this case also relief must be given; in this case, however, he himself must manumit, not deliver to the mother.
§40.5.55.1Sed si directo libertas data fuerit ancillae et horum aliquid euenerit, quemadmodum natis subuenietur? nam ibi quidem petitur fideicommissa libertas et praetor paruulis subuenit: cum uero directo libertas datur, non petitur.
But if freedom was given directly to the female slave and any of these things has happened, how will succor be given to those born? For in the former case indeed, the fideicommissary freedom is petitioned for, and the praetor succors the infants; but when freedom is given directly, it is not petitioned for.
sed etiam hoc casu puto nato subueniendum esse, ut aditus praetor in rem matri decernat actionem exemplo fideicommissariae libertatis.
But even in this case, I think that the newborn must be succored, so that the praetor, having been approached, may decree an action in rem to the mother, after the example of fideicommissary freedom.
sic denique et Marcellus libro sexto decimo digestorum scripsit et ante aditam hereditatem usucaptis, qui testamento manumissi sunt, subueniendum esse, ut eis libertas conseruetur utique per praetorem, quamuis his et imputari possit, quare usucapti sunt: in paruulis autem nulla deprehenditur culpa.
Thus indeed Marcellus also wrote in the sixteenth book of his Digests that relief must also be given to those who, having been manumitted by will, were acquired by usucapion before the inheritance was entered upon, so that their freedom may at all events be preserved for them by the praetor, although it can even be imputed to them why they were acquired by usucapion; in infants, however, no fault is found.

Notes

  1. 40.5.55.prpostea cognouit ... quam — The conjunction posteaquam (after) is separated (tmesis) by the main verb cognouit and the accusative-with-infinitive clause se heredem institutum [esse]. It is interpreted as 'after the female slave gave birth, he learned that he had been instituted heir.'
  2. 40.5.55.1in rem matri decernat actionem — in rem modifies actionem, forming the term 'actio in rem' (a real action). matri is a dative of advantage ('for the mother'). Since a direct legacy of freedom only takes effect upon the heir's entry into the inheritance, a child born beforehand would technically become a slave of the estate; the praetor resolves this by granting a real action to the mother to claim her child, on the analogy of fideicommissary freedom.
  3. 40.5.55.1ante aditam hereditatem usucaptis — ante aditam hereditatem is a dominant participle construction (ab urbe condita construction) meaning 'before the inheritance was entered upon.' usucaptis is a perfect participle in the dative, modifying the implied referent of the relative clause qui testamento manumissi sunt ('those who were manumitted by will'), acting as the dative agent/complement for the impersonal gerundive subueniendum esse ('relief must be given').

Cite this passage

Justinian I, The Digest of Justinian §40.5.55.pr-40.5.55.1. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:40.5.55.pr-40.5.55.1

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