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Justinian I · The Digest of Justinian §42.5.6.pr-42.5.6.2

Sale of Burdensome Estate and Refund of Prior Payments

Passage 6955 of 9271 · Latin

Summary

This chunk discusses the sale of a deceased parent's estate when it is disadvantageous for a ward to retain it, the validity of actions taken before abstention, and the restitution of payments made to certain creditors prior to the sale of assets, citing the opinions of Julian and Scaevola.

[PAULUS libro quinquagesimo octauo ad edictum. ] §42.5.6.prSi non expedierit pupillo hereditatem parentis retinere, praetor bona defuncti uenire permittit, ut quod superauerit pupillo restituatur.
[PAULUS, on the Edict, book 58] If it is not advantageous for a ward to retain his parent's inheritance, the praetor permits the goods of the deceased to be sold, so that what remains may be restored to the ward.
§42.5.6.1Si pupillus, antequam abstineret, aliquid gesserit, seruandum est, utique si bona fide gessit.
If a ward, before abstaining from the inheritance, has performed any transaction, it must be maintained, especially if he acted in good faith.
§42.5.6.2Quid ergo, si quibusdam creditoribus soluit, deinde bona uenierint? si quaeratur, an repetitio sit, ex causa id statuendum Iulianus ait, ne alterius aut neglegentia aut cupiditas huic, qui diligens fuit, noceat.
What then, if he paid certain creditors, and afterwards the goods were sold? If it is asked whether there is a right of recovery, Julian says that this must be decided according to the circumstances of the case, lest the negligence or greed of another should harm this person who was diligent.
quod si utroque instante tibi gratificatus tutor soluit, aequum esse aut prius eandem portionem mihi quaeri aut communicandum quod accepisti: et hoc Iulianus ait.
But if, while both creditors were pressing for payment, the tutor paid you by way of favoring you, Julian also says that it is equitable either that the same share be sought for me first, or that what you received be shared.
apparet autem loqui eum, si ex bonis paternis solutum sit.
It is clear, however, that he is speaking of a case where payment was made out of the paternal assets.
quid ergo, si aliunde pupillus soluerit? reddi ei debebit nec ne? et utrum a creditore an ex hereditate? Scaeuola noster ait, si aliquid sit in bonis, deducendum ex hereditate solidum exemplo eius, qui gessit negotia: sed si nihil sit in bonis, non esse iniquum aduersus creditorem dandam repetitionem quasi indebiti soluti.
What then, if the ward paid from another source? Will it have to be returned to him or not? And whether from the creditor or from the inheritance? Our friend Scaevola says that if there is anything in the assets, the entire sum should be deducted from the inheritance after the example of one who has managed business; but if there is nothing in the assets, it is not inequitable that a right of recovery be granted against the creditor as if for the payment of what was not due.

Notes

  1. §42.5.6.pruenire — The present infinitive of the irregular verb ueneo (to be sold), which functions as the passive of uendo. Although spelled identically to uenire (to come), they differ in vowel quantity (uēneo vs. uĕnio). Here it forms an accusative-with-infinitive construction with bona defuncti as the subject.
  2. §42.5.6.2utroque instante — Ablative absolute. utroque is the ablative of uterque (each of the two, referring here to the two creditors, 'me' and 'you'), and instante is the ablative singular of the present participle of insto (to press, demand), meaning 'while both were pressing'.
  3. §42.5.6.2exemplo eius, qui gessit negotia — Refers to the application of the principles of negotiorum gestio (management of affairs). The genitive pronoun eius is modified by the relative clause qui gessit negotia (the one who conducted the business).
  4. §42.5.6.2quasi indebiti soluti — Refers to the recovery of a payment made under the mistaken belief that it was due (condictio indebiti), introduced by the comparative particle quasi. indebiti soluti is the genitive of the substantivized phrase indebitum solutum.

Cite this passage

Justinian I, The Digest of Justinian §42.5.6.pr-42.5.6.2. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:42.5.6.pr-42.5.6.2

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