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Justinian I · The Digest of Justinian §42.5.4.pr

Conditional Slave Heir and Preventing Sale of Estate

Passage 6953 of 9271 · Latin

Summary

This section discusses the praetor's decree regarding the property and liberty of a slave instituted as heir under a condition when he fails to meet it within a certain time, and how the sale of the deceased's goods is prevented if someone defends the deceased.

[PAULUS libro quinquagesimo septimo ad edictum. ] §42.5.4.prSi seruus sub condicione heres institutus sit aut dubium sit, an is heres liberque futurus sit, non est iniquum postulantibus creditoribus ita decerni, ut, si ante certum tempus is heres non extiterit, perinde omnia obseruentur, ac si is heres ita institutus non esset: quod plerumque accideret, si sub condicione dandae alicui pecuniae heres institutus sit nec dies adpositus sit.
[PAULUS, on the Edict, book 57] If a slave has been instituted as heir under a condition, or if it is doubtful whether he will be the heir and free, it is not unfair, upon the petition of the creditors, for it to be decreed that, if he does not emerge as heir before a certain time, everything should be observed just as if he had not been so instituted as heir: which would commonly happen if he has been instituted as heir under the condition of giving money to someone and no date has been fixed.
sed hoc quantum ad bona ita obseruandum: ceterum libertas ei quandoque competet et a praetore conseruanda est, etiamsi certum sit neque heredem neque bonorum possessorem futurum.
But this is to be so observed only as far as the property is concerned: otherwise, liberty will belong to him at some time and must be preserved by the praetor, even if it is certain that he will be neither the heir nor the possessor of the goods.
si quis tamen heredem se spondendo uel actiones patiendo defunctum defendat, bona defuncti uenire non poterunt.
However, if anyone defends the deceased by promising that he is the heir or by submitting to actions, the goods of the deceased cannot be sold.

Notes

  1. §42.5.4.prpostulantibus creditoribus — An ablative absolute construction with the present participle postulantibus, meaning "upon the petition of the creditors" or "when the creditors request."
  2. §42.5.4.prperinde omnia obseruentur, ac si is heres ita institutus non esset — The correlative expression perinde... ac si means "just as if." The subordinate clause introduced by ac si takes the subjunctive (here imperfect non esset, denoting a continuous state or hypothetical negation) to express a contrary-to-fact condition.
  3. §42.5.4.prheredem se spondendo — Spondendo is the ablative of the gerund expressing means. Its object is the accusative-and-infinitive construction se [esse] heredem, meaning "by promising that he himself is the heir."
  4. §42.5.4.pruenire — The present infinitive of uēneo (to be sold, 4th conjugation), not to be confused with uĕnio (to come). It functions as the passive equivalent of uendo (to sell), meaning "to be sold."

Cite this passage

Justinian I, The Digest of Justinian §42.5.4.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:42.5.4.pr

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