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Justinian I · The Digest of Justinian §40.5.9.pr

Claim to Freedom upon Breach of a Trust against Alienation

Passage 6419 of 9271 · Latin

Summary

Regarding a trust established to prevent a slave from entering into another's servitude, the slave can generally petition for freedom immediately upon alienation. However, if the alienation is involuntary and stems from the testator's own circumstances, the trust-freedom is withheld as something unforeseen by the deceased.

[MARCELLUS libro quinto decimo digestorum. ] §40.5.9.prCum fidei heredis commisit, ne seruus alienam seruitutem patiatur experiri, potest confestim, ut fuerit alienatus, petere libertatem.
[MARCELLUS in the fifteenth book of the Digests.] When a testator has committed to the trust of the heir that a slave should not be permitted to experience the servitude of another, the slave can, as soon as he has been alienated, immediately petition for freedom.
sed ubi alienatio non est uoluntaria, sed necessitas alienandi ex causa testatoris pendeat, prope est, ut nondum debeat praestari fideicommissum, quod potest uideri defunctus nihil sensisse de huiusmodi casu alienationis.
But where the alienation is not voluntary, but the necessity of alienating depends on a cause originating from the testator, it is nearly the case that the trust-freedom should not yet be granted, because the deceased can be seen to have intended nothing regarding a case of alienation of this kind.

Notes

  1. §40.5.9.prpatiatur experiri — The subjunctive present 'patiatur' of the deponent verb 'patior' (to suffer, permit) takes the present infinitive 'experiri' of the deponent verb 'experior' (to experience) as its complementary infinitive. It forms the meaning 'to suffer [someone] to experience'.
  2. §40.5.9.prprope est, ut nondum debeat — An impersonal construction 'prope est ut' (it is nearly the case that, it is reasonable to hold that) followed by the subjunctive present 'debeat'. It indicates that it is highly reasonable to hold that the duty of the trust is not yet due when the alienation is unavoidable.
  3. §40.5.9.prpotest uideri defunctus nihil sensisse — A personal construction with the nominative and infinitive (nominativus cum infinitivo). The subject 'defunctus' (nominative) agrees with the passive main verb 'potest uideri' (can seem) and serves as the subject of the perfect infinitive 'sensisse' (to have intended). It translates literally as 'the deceased can seem to have intended nothing'.

Cite this passage

Justinian I, The Digest of Justinian §40.5.9.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:40.5.9.pr

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