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Justinian I · The Digest of Justinian §47.2.65.pr

Theft by Bequeathed Slave Prior to Inheritance Entry

Passage 7927 of 9271 · Latin

Summary

In a case where a bequeathed slave commits a theft against the heir before the inheritance is accepted, if the legatee later accepts the bequest, the heir can bring a noxal action against the legatee because the ownership of the slave passes directly from the testator to the legatee without ever belonging to the heir.

[NERATIUS libro primo membranarum. ] §47.2.65.prA Titio herede homo Seio legatus ante aditam hereditatem Titio furtum fecit.
[NERATIUS in the first book of Parchments.] A slave bequeathed to Seius from the heir Titius committed a theft against Titius before the inheritance was accepted.
si adita hereditate Seius legatum ad se pertinere uoluerit, furti eius serui nomine aget cum eo Titius, quia neque tunc, cum faceret furtum, eius fuit, et (ut maxime quis existimet, si seruus esse coeperit eius, cui furtum fecerat, tolli furti actionem, ut nec si alienatus sit, agi possit eo nomine) ne post aditam quidem hereditatem Titii factus est, quia ea, quae legantur, recta uia ab eo qui legauit ad eum cui legata sunt transeunt.
If, after the inheritance is accepted, Seius wishes the bequest to belong to him, Titius will bring an action against him on account of the theft of that slave, because at the time he committed the theft, the slave did not belong to him, and (even if one should think to the utmost that, if a slave begins to belong to the person against whom he had committed a theft, the action for theft is extinguished so that even if he is alienated, no action can be brought on that account) he did not become Titius' property even after the inheritance was accepted, because things which are bequeathed pass directly from the person who bequeathed them to the person to whom they were bequeathed.

Notes

  1. §47.2.65.preius fuit — The genitive eius here refers to Seius, the legatee. Since the slave did not yet belong to Seius when the theft was committed, Seius was not the owner at the time of the delict, which allows Titius to bring a noxal action against him once he accepts the bequest.
  2. §47.2.65.prut maxime quis existimet — A clause introduced by ut expressing concession ("even if one should think to the utmost"). The structure inside the parentheses is an accusative with infinitive construction (tolli furti actionem) conditioned by si seruus esse coeperit..., followed by a consecutive ut clause (ut... agi possit), forming a complex nested structure.
  3. §47.2.65.prrecta uia — "By a direct route." This means that the ownership of the bequeathed property passes directly from the deceased (testator) to the legatee (Seius) without ever passing through the heir (Titius). Consequently, the slave never became the property of Titius (the victim), and the extinction of the action due to merger of rights does not occur.

Cite this passage

Justinian I, The Digest of Justinian §47.2.65.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:47.2.65.pr

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