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Justinian I · The Digest of Justinian §47.12.10.pr

Necessary Heirs and the Action for Violating a Sepulchre

Passage 8068 of 9271 · Latin

Summary

Papinian argues that a necessary heir who has not meddled with the assets can bring an action for violation of a sepulchre, and does not need to fear the deceased's creditors because the action aims at vengeance rather than asset recovery.

[PAPINIANUS libro octauo quaestionum. ] §47.12.10.prQuaesitum est, an ad heredem necessarium, cum se bonis non miscuisset, actio sepulchri uiolati pertineret.
[PAPINIANUS, in the eighth book of Questions.] A question was asked whether the action for violation of a sepulchre belonged to a necessary heir when he had not meddled with the assets.
dixi recte eum ea actione experiri, quae in bonum et aequum concepta est: nec tamen si ² egerit, hereditarios creditores timebit, cum etsi per hereditatem optigit haec actio, nihil tamen ex defuncti capiatur uoluntate, neque id capiatur, quod in rei persecutione, sed in sola uindicta sit constitutum.
I replied that he rightly sues with that action, which is formulated in good and fair; nor, however, if ² he sues, will he have to fear the creditors of the inheritance, since even if this action fell to him through inheritance, yet nothing is acquired from the will of the deceased, nor is that acquired which is established for the recovery of property, but rather for sole vengeance.

Notes

  1. §47.12.10.prheredem necessarium, cum se bonis non miscuisset — A 'necessary heir' (heredes necessarii) refers to an heir (such as a house-child or a slave) who has no right to refuse the inheritance. 'Not having meddled with the assets' (se bonis non miscere) refers to the legal requirement (granted by the praetorian edict) to avoid liability for the hereditary debts by not touching the estate.
  2. §47.12.10.prquae in bonum et aequum concepta est — The antecedent is 'ea actione' (the action for violation of a sepulchre). This indicates that the formula of this action is formulated on 'good and fair' (ex bono et aequo), granting the judge broad discretion.
  3. §47.12.10.prneque id capiatur, quod in rei persecutione, sed in sola uindicta sit constitutum — The antecedent of the relative pronoun 'quod' is 'id', which is the subject of 'capiatur'. Within the 'quod' clause, an action for the recovery of property (rei persecutio) is contrasted with one for mere vengeance/penalty (uindicta). Since this action falls under the latter category, the interest obtained does not serve as assets to pay off hereditary debts. The subjunctive 'sit constitutum' in the second part is subordinate to the subjunctive 'capiatur' inside the 'cum' clause.

Cite this passage

Justinian I, The Digest of Justinian §47.12.10.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:47.12.10.pr

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