Humanitext Reader

Justinian I · The Digest of Justinian §42.1.49.pr

Liability of Disinherited Persons within Means and its Measure

Passage 6901 of 9271 · Latin

Summary

Paulus discusses that a disinherited person or one who abstained from an estate is liable only to the extent of their ability, and in determining this ability, the standard of a husband or patron (without deducting other debts) should apply rather than that of a donor.

[PAULUS libro secundo manualium. ] §42.1.49.prEt exheredatum uel eum, qui se paterna hereditate abstinuit, nec ex ipsius contractu nisi id quod facere potest condemnandum.
[PAULUS, in the second book of Manuals.] And a disinherited person, or one who has abstained from his father’s estate, should not be condemned, even on his own contract, except to the extent of his ability to perform.
quemadmodum autem facere posse credatur, uidendum est, utrum deducto omni aere alieno, ut is, qui ex donatione conuenitur, an ut maritus et patronus nullo deducto aere alieno.
But how he is to be believed to be able to perform must be considered: whether after deducting all debts, as in the case of one who is sued on a donation, or like a husband and patron, without deducting any debt.
et indubitati iuris est ad similitudinem uiri et patroni eum detrahendum: pinguius enim donatori succurrere debemus quam ei, qui uerum debitum persoluere compellitur,
And it is an undisputed rule of law that, in likeness to a husband and patron, he is to be reduced: for we ought to succor a donor more generously than one who is compelled to pay a true debt.

Notes

  1. §42.1.49.prexheredatum uel eum... condemnandum — The use of the accusative rather than the nominative indicates an accusative with infinitive construction (with esse omitted), used either independently in the style of manuals or to state a legal proposition. The phrase nec... nisi functions as a restrictive limitation ('only if' / 'except to the extent of').
  2. §42.1.49.prindubitati iuris est — The genitive iuris is a genitive of quality or definition. Used impersonally, the phrase means 'it is an undisputed rule of law,' where the true subject is the subsequent accusative with infinitive clause ad similitudinem... eum detrahendum (esse).
  3. §42.1.49.preum detrahendum — The verb detrahere here means 'to reduce' or 'to limit (one's liability or obligation).' It refers to reducing the liability of the disinherited person to the limit of their competency, in likeness to the privilege granted to a husband or patron.

Cite this passage

Justinian I, The Digest of Justinian §42.1.49.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:42.1.49.pr

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