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Justinian I · The Digest of Justinian §42.2.7.pr

Confession of a Trust and Acquittal by the Arbiter

Passage 6923 of 9271 · Latin

Summary

Explains that when an heir confesses to a trust but the appointed arbiter finds no debt actually exists, whether the arbiter can acquit the heir depends on the underlying reason for the lack of debt.

[AFRICANUS libro quinto quaestionum. ] §42.2.7.prCum fideicommissum peteretur, heres confessus est debere: arbiter ad restituendum datus comperit nihil deberi: quaesitum est, an possit absoluere.
[AFRICANUS in the fifth book of Questions.] When a trust was being claimed, the heir confessed that he owed it; an arbiter appointed to effect restoration discovered that nothing was owed. The question was raised whether he could acquit the defendant.
respondi posse interesse, qua ex causa nihil debeatur.
I replied that it could make a difference for what reason nothing is owed.
nam si ob id, quod nullum fideicommissum fuerit, non debere eum absoluere: si uero quia testator forte soluendo non erat aut quod heres omne solutum esse apud praetorem dixerat et, cum controuersia et conputatio difficilior esset, arbiter datus fuerit, saluo officio eum absoluturum: has enim partes eius esse, ut, si in conputatione nihil inueniatur, possit absoluere.
For if it is because no trust had actually been created, he ought not to acquit him; but if it is because the testator happened to be insolvent, or because the heir had asserted before the praetor that everything had been paid, and an arbiter was appointed because the dispute and the calculation were rather difficult, he would acquit him without violating his duty. For this is part of his function, that if nothing is found upon calculation, he can acquit him.
sed et ex superiore casu ad praetorem remittere debet, ut absoluatur.
But even in the former case, he ought to refer the matter back to the praetor, so that the defendant may be acquitted.

Notes

  1. §42.2.7.prposse interesse — The infinitive of the impersonally used verb interesse serves as the complementary infinitive to posse. The indirect question clause qua ex causa nihil debeatur functions as the logical subject of interesse.
  2. §42.2.7.prsoluendo — The dative of the gerundive expressing purpose or fitness, forming with esse the legal idiom soluendo esse (to be solvent). Here, with non erat, it means that the testator was insolvent.
  3. §42.2.7.prsaluo officio — An ablative absolute consisting of the noun officium and the adjective saluus, expressing a restrictive condition: 'without violating his duty' or 'consistent with his duty'.
  4. §42.2.7.prabsoluturum — A future active infinitive with the omission of esse, within the indirect speech (A.C.I. construction) dependent on respondi. Its logical subject is the accusative eum (referring to the arbiter).
  5. §42.2.7.prex superiore casu — Refers to the former of the two scenarios mentioned in the preceding sentence (i.e., the case where no trust had actually been created).

Cite this passage

Justinian I, The Digest of Justinian §42.2.7.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:42.2.7.pr

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