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Justinian I · The Digest of Justinian §45.3.26.pr

Validity of Stipulation for Usufruct by Estate Slave

Passage 7534 of 9271 · Latin

Summary

Explains that because a usufruct requires a person to exist, a slave of an inheritance cannot validly stipulate for a usufruct, whether unconditionally or conditionally, whereas a legacy of a usufruct can be valid since its vesting is deferred.

[PAULUS libro primo manualium. ] §45.3.26.prUsus fructus sine persona esse non potest et ideo seruus hereditarius inutiliter usum fructum stipulatur.
[PAULUS, from the first book of Manuals.] A usufruct cannot exist without a person, and therefore a slave belonging to an inheritance stipulates for a usufruct ineffectually.
legari autem ei posse usum fructum dicitur, quia dies eius non cedit statim: stipulatio autem pura suspendi non potest.
However, it is said that a usufruct can be bequeathed to him, because its day does not accrue immediately; on the other hand, an unconditional stipulation cannot be suspended.
quid ergo, si sub condicione stipuletur? nec hoc casu ualeat stipulatio, quia ex praesenti uires accipit stipulatio, quamuis petitio ex ea suspensa sit.
What then, if he stipulates under a condition? Even in this case the stipulation would not be valid, because the stipulation takes force from the present moment, although the claim arising from it is suspended.

Notes

  1. §45.3.26.prdies eius non cedit statim — An explanation of the legal technical term "dies cedit" (the day accrues/the right vests) in Roman law. While a legacy usually vests at the testator's death, in the case of a legacy to a slave of an inheritance before acceptance, the vesting of the right is deferred (does not accrue immediately) until an heir accepts the inheritance. This postponement allows the legacy to be valid once a definite person (the heir) is established, satisfying the requirement that a usufruct must have a person.
  2. §45.3.26.prstipulatio autem pura suspendi non potest — The contrast with "pura" (unconditional) stipulation. While conditional stipulations and legacies can have their effects deferred, an unconditional stipulation by its nature attempts to take effect immediately upon its conclusion. Therefore, during the stage of an inheritance when there is no existing person (persona) to hold the right, its effect cannot be suspended and it must be invalid.

Cite this passage

Justinian I, The Digest of Justinian §45.3.26.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:45.3.26.pr

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