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Justinian I · The Digest of Justinian §41.1.49.pr

Acquisitions from Gifts to Usufructuary Slaves

Passage 6679 of 9271 · Latin

Summary

This section explains the rules determining for whom property is acquired when a donation is made to a slave subject to a usufruct or to a free person serving in good faith, depending on the source of the donation and the donor's intention.

[IDEM libro nono ad Plautium. ] §41.1.49.prQuod fructuarius ex re sua donat, ex re eius est: sed si eo animo id fecerit, ut ad proprietatis dominum pertineat, dicendum est illi adquiri.
[THE SAME, from the Commentary on Plautius, book 9] What a usufructuary donates from his own property (to the slave) is (held to be) from his own property (and thus acquired for him); but if he does so with the intention that it should belong to the owner of the property, it must be said to be acquired for the latter.
si autem extraneus ei donet indistincte, soli proprietario adquiritur.
If, however, a stranger donates to him (the slave) without distinction, it is acquired for the owner alone.
eadem dicemus in homine libero, qui bona fide mihi seruit, ut, si ei aliquid donauerim, meum sit.
We shall say the same in the case of a free man who serves me in good faith, so that, if I donate something to him, it remains mine.
et ideo Pomponius scribit, quamuis donauerim ei operas suas, tamen quidquid ex operis suis adquiret, mihi adquiri.
And therefore Pomponius writes that, although I may have donated his own labor to him, nevertheless, whatever he acquires from his labor is acquired for me.

Notes

  1. §41.1.49.prQuod fructuarius ex re sua donat — The recipient of the donation by the usufructuary (fructuarius), namely the slave subject to the usufruct (servus fructuarius), is omitted from the context. In Roman law, whether property acquired by such a slave belongs to the usufructuary depends on whether it is acquired 'from the property of the usufructuary' (ex re fructuarii) or 'from the slave's own labor' (ex operis); otherwise, it goes to the owner (proprietarius). Thus, a donation from the usufructuary's own property falls under 'ex re fructuarii' and is consequently acquired for the usufructuary themselves (ex re eius est).
  2. §41.1.49.preadem dicemus in homine libero — This concerns the legal status of a free person serving in good faith (homo liber bona fide serviens). If they receive a donation (donauerim) from their possessor (mihi), it is treated as an acquisition from the possessor's property and thus remains with the possessor ('meum sit'). The ut-clause (ut ... meum sit) functions consecutively, explaining the concrete result or application of 'eadem dicemus'.
  3. §41.1.49.prquamuis donauerim ei operas suas — The phrase 'donating his own labor to him' refers to a fictional donation where the possessor allows the free person serving in good faith to keep the proceeds of his own labor. However, Pomponius rules that despite such a donation, based on legal principles, whatever the free person acquires from that labor is still acquired for the possessor (mihi adquiri).

Cite this passage

Justinian I, The Digest of Justinian §41.1.49.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:41.1.49.pr

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