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Justinian I · The Digest of Justinian §5.3.43.pr

Petition for Inheritance after Receiving a Legacy

Passage 1041 of 9271 · Latin

Summary

This section discusses the procedure when a person petitions for an inheritance after receiving a legacy, explaining the necessity of security for the return of the legacy in case of defeat, and the denial of the petition to claimants acting in bad faith.

[PAULUS libro secundo ad Plautium. ] §5.3.43.prPostquam legatum a te accepi, hereditatem peto.
[PAULUS in his second book on Plautius.] After I have received a legacy from you, I petition for the inheritance.
Atilicinus quibusdam placuisse ait non aliter mihi aduersus te dandam petitionem, quam si legatum redderem.
Atilicinus says that some were of the opinion that the petition should not be granted to me against you unless I returned the legacy.
uideamus tamen ne non aliter petitor hereditatis legatum restituere debeat, quam ut ei caueatur, si contra eum de hereditate iudicatum fuerit, reddi ei legatum: cum sit iniquum eo casu possessorem hereditatis legatum, quod soluerit, retinere, et maxime si non per calumniam, sed per errorem hereditatem petierit aduersarius: idque et Laelius probat.
Let us see, however, whether the petitioner for the inheritance ought not to restore the legacy except on the condition that security is given to him that, if judgment regarding the inheritance should be given against him, the legacy will be returned to him; since it is unjust in that case for the possessor of the inheritance to retain the legacy which he has paid, and especially if the adversary petitioned for the inheritance not through chicanery, but through error; and Laelius also approves of this.
imperator autem Antoninus rescripsit ei, qui legatum ex testamento abstulisset, causa cognita hereditatis petitionem negandam esse, scilicet si manifesta calumnia sit.
Furthermore, the Emperor Antoninus rescribed that, after a hearing of the case, the petition for inheritance must be denied to one who had taken a legacy under the will, provided, of course, that there is manifest chicanery.

Notes

  1. §5.3.43.pruideamus tamen ne — The expression uideamus ne introduces a tentative suggestion or consideration ("let us see whether... not"). Combined with the following non aliter... quam ut... ("not otherwise... than that..."), it forms a double-negative structure implying that the restitution should indeed only be made under the specified condition.
  2. §5.3.43.prcausa cognita — Ablative absolute. A technical legal term meaning "after a hearing of the case" or "upon judicial inquiry," indicating that the magistrate or emperor made a decision not arbitrarily, but after examining the facts and merits of the specific case.
  3. §5.3.43.prcalumniam — Legal term referring to "chicanery," "bad faith," or "an unfounded suit." It denotes bringing a lawsuit with the knowledge that one has no case, solely to harass the opponent or secure an unjust advantage (contrasted with error, which is a genuine mistake).

Cite this passage

Justinian I, The Digest of Justinian §5.3.43.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:5.3.43.pr

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