Humanitext Reader

Justinian I · The Digest of Justinian §42.1.44.pr

Ward's Abstention from Inheritance and Judgment on New Heirs

Passage 6896 of 9271 · Latin

Summary

In a case where a female ward, having lost a lawsuit regarding her father's contract, is abstained from the estate by her tutors and the property passes to a substitute or co-heirs, it is answered that they are liable to the judgment action unless her defeat was due to the tutors' fault.

[SCAEUOLA libro quinto responsorum. ] §42.1.44.prEx contractu paterno actum est cum pupilla tutore auctore et condemnata est: postea tutores abstinuerunt eam bonis paternis et ita bona defuncti ad substitutum uel ad coheredes peruenerunt: quaeritur, an hi ex causa iudicati teneantur.
[SCAEUOLA, in the fifth book of Opinions.] An action was brought under a father's contract against a female ward with the authorization of her tutor, and judgment was given against her. Afterwards, her tutors kept her back from her father's estate, and thus the property of the deceased passed to the substitute or to the co-heirs. The question is whether they are liable on the ground of the judgment.
rescripsit dandam in eos actionem, nisi culpa tutorum pupilla condemnata est.
He replied in a rescript that an action should be granted against them, unless the ward was condemned through the fault of her tutors.

Notes

  1. §42.1.44.prtutore auctore — An ablative absolute construction consisting of two nouns in the ablative (tutore and auctore) without a participle. It means "with the tutor acting as authorizer" or "with the authorization of the tutor."
  2. §42.1.44.prabstinuerunt eam bonis paternis — The verb abstinere here takes an accusative of the person (eam) and an ablative of separation (bonis paternis), meaning "to keep someone away from something." In Roman law, this refers to the tutors exercising the ward's right to abstain from the paternal estate (beneficium abstinendi) to avoid liability for the deceased father's debts.
  3. §42.1.44.prrescripsit — An impersonal or subject-omitted verb meaning "he replied in writing (in a rescript)." In legal texts, this is a standard formula referring to an imperial rescript being cited within a jurist's responsa.
  4. §42.1.44.prdandam in eos actionem — An accusative and infinitive construction (indirect discourse) with the copula esse omitted after the gerundive dandam (agreeing with actionem). The phrase in eos means "against them" (referring to the substitute or co-heirs), expressing the opinion that "an action should be granted against them."

Cite this passage

Justinian I, The Digest of Justinian §42.1.44.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:42.1.44.pr

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