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Justinian I · The Digest of Justinian §42.5.17.pr-42.5.17.1

Privilege of Claims for Funeral Expenses and Dowry

Passage 6966 of 9271 · Latin

Summary

The chunk discusses the scope of the privilege for funeral expenses and the application of the privilege to dowries in cases of cancelled marriages or when a girl under the age of twelve is taken into a house.

[ULPIANUS libro sexagesimo tertio ad edictum. ] §42.5.17.prQuaesitum est, utrum ita demum priuilegium habet funeraria, si is cuius bona ueneunt funeratus sit, an etiam si proponas alium esse funeratum.
[Ulpian, on the Edict, book 63] The question was raised whether the funeral action has a privilege only if the person whose property is sold has been buried, or also if you suppose that someone else has been buried.
et hoc iure utimur, ut quicumque sit funeratus, id est siue is, cuius de bonis agitur, siue quid is debuit, quod reddere eum, si uiueret, funeraria actione cogi oporteret, priuilegio locus sit paruique referre dicamus, qua actione hic sumptus repetatur, funeraria an familiae erciscundae an qua alia, dummodo sumptus funeris causa factus sit.
And we follow this rule of law: that whoever has been buried—that is, whether it be the person whose property is in question, or whether he owed something which, if he were alive, he would have been compelled to return by the funeral action—there is room for the privilege, and we say that it matters little by which action this expense is recovered, whether by the funeral action, or the action for partition of an inheritance, or any other, provided only that the expense was incurred for the sake of the funeral.
quacumque igitur actione ob funeris sumptum utatur, etiam funerariam ei competere.
Therefore, by whichever action one sues for the funeral expense, the funeral action is also available to him.
quare si in stipulatum funeris inpensa deducta est, dicendum est locum esse priuilegio. legio, si modo quis non abiciendi priuilegii causa stipulatus est.
Hence, if the funeral expense has been brought into a stipulation, it must be said that there is room for the privilege, provided only that one did not stipulate for the sake of abandoning the privilege.
§42.5.17.1Si sponsa dedit dotem et nuptiis renuntiatum est, tametsi ipsa dotem condicit, tamen aequum est hanc ad priuilegium admitti, licet nullum matrimonium contractum est: idem puto dicendum etiam, si minor duodecim annis in domum quasi uxor deducta sit, licet nondum uxor sit:
If a betrothed woman has given a dowry and the marriage is called off, although she herself sues for the return of the dowry, yet it is equitable that she be admitted to the privilege, even though no marriage was contracted. I think the same must be said also if a girl under twelve years of age has been led into the house as if she were a wife, even though she is not yet a wife.

Notes

  1. §42.5.17.prlegio — This is considered a scribal error (dittography), where the end of the preceding word priuilegio was erroneously copied as an independent word. It should originally read priuilegio, si modo..., and has been omitted in the translation.
  2. §42.5.17.prsiue quid is debuit, quod reddere eum, si uiueret, funeraria actione cogi oporteret — The structure is analyzed as siue [is debuit] quid, quod eum reddere cogi oporteret. Here, is refers to the debtor, quid is the direct object of debuit, and the relative pronoun quod (with quid as its antecedent) is the object of the infinitive reddere. eum is the subject accusative of the passive infinitive cogi, which depends on the impersonal oporteret. The clause means 'or if he owed something which, if he were alive, it would behave him to be compelled by the funeral action to return'.
  3. §42.5.17.1minor duodecim annis — The ablative annis is an ablative of comparison dependent on the comparative minor, literally meaning 'smaller than twelve years', i.e., 'under twelve years of age'.

Cite this passage

Justinian I, The Digest of Justinian §42.5.17.pr-42.5.17.1. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:42.5.17.pr-42.5.17.1

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