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Justinian I · The Digest of Justinian §44.1.6.pr

Exception of the Testator's Fraud against a Legatee

Passage 7195 of 9271 · Latin

Summary

Explains that if a legatee claims a legacy, an exception can be raised based on the fraud of the testator, and justifies this by stating that just as an heir is barred by an exception as a universal successor, so too should a legatee be barred as a successor to a single thing.

[IDEM libro septuagensimo primo ad edictum. ] §44.1.6.prSi rem legatam petat legatarius, de dolo testatoris excipitur: nam sicut heres, qui in uniuersum ius succedit, summouetur exceptione, ita et legatarius debet summoueri quasi unius rei successor.
[THE SAME in the seventy-first book on the Edict.] If a legatee should claim a legacy, an exception may be opposed on the ground of the fraud of the testator; for just as an heir, who succeeds to the entire right, is barred by an exception, so also a legatee ought to be barred, as being, so to speak, a successor to a single thing.

Notes

  1. §44.1.6.prexcipitur — The third-person singular passive of `excipere` ('to raise an objection/exception'). Here, it is used impersonally to mean 'an exception is raised' or 'an exception is allowed,' indicating that the defendant (such as the heir) from whom the legacy is claimed can plead the deceased testator's fraud (exceptio doli) against the legatee.
  2. §44.1.6.prquasi unius rei successor — In contrast with the heir who succeeds to the entire right (`heres qui in uniuersum ius succedit`), the legatee is defined as a successor to a single thing. Accompanied by `quasi` ('as if'), it metaphorically describes the concept of a singular successor as opposed to a universal successor.

Cite this passage

Justinian I, The Digest of Justinian §44.1.6.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:44.1.6.pr

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