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Justinian I · The Digest of Justinian §50.17.73.pr-50.17.73.4

Rules on Guardianship and Third-Party Agreements

Passage 9133 of 9271 · Latin

Summary

Basic principles regarding the alignment of guardianship and inheritance, requirements for appointing a testamentary guardian, definitions of acts done by force or secretly, the nullity of unintelligible testamentary clauses, and the invalidity of agreements made on behalf of a third party.

[QUINTUS MUCIUS SCAEUOLA libro singulari ὅρων. ] §50.17.73.prQuo tutela redit, eo et hereditas peruenit, nisi cum feminae heredes intercedunt.
[QUINTUS MUCIUS SCAEUOLA, from his single book on Definitions.] To wherever the guardianship reverts, there the inheritance also goes, except when female heirs intervene.
§50.17.73.1Nemo potest tutorem dare cuiquam nisi ei, quem in suis heredibus cum moritur habuit habiturusue esset, si uixisset.
No one can appoint a guardian for anyone except for one whom he had among his own heirs when he died, or whom he would have had, if he had lived.
§50.17.73.2Ui factum id uidetur esse, qua de re quis cum prohibetur, fecit: clam, quod quisque, cum controuersiam haberet habiturumue se putaret, fecit.
An act is deemed to have been done by force when a person did it although he was forbidden to do so; and secretly, when a person did it while he had a dispute, or thought he would have one.
§50.17.73.3Quae in testamento ita sunt scripta, ut intellegi non possint, perinde sunt, ac si scripta non essent.
Provisions written in a will in such a manner that they cannot be understood are just as if they had not been written at all.
§50.17.73.4Nec paciscendo nec legem dicendo nec stipulando quisquam alteri cauere potest.
No one can secure a benefit for another, either by making an agreement, or by dictating a condition, or by entering into a stipulation.

Notes

  1. §50.17.73.1habiturusue esset, si uixisset — The subject of the conditional clause `si uixisset` ("if he had lived") is the testator. It refers to a person who would have become a self-successor (suus heres), such as a posthumous child (postumus), had the testator survived until that person's birth.
  2. §50.17.73.2clam, quod quisque, cum controuersiam haberet habiturumue se putaret, fecit — The definition of a "secretly done" act (clam). It is defined not merely by physical concealment, but by the subjective state of the doer who acts while knowing that there is an existing dispute (controuersiam haberet) or anticipating that one will arise (habiturum se putaret).
  3. §50.17.73.4alteri cauere — Securing a legal benefit or protection for another person. This reflects the classic Roman law principle that "no one can stipulate for another" (alteri stipulari nemo potest), indicating the invalidity of contracts or agreements made for the benefit of a third party.

Cite this passage

Justinian I, The Digest of Justinian §50.17.73.pr-50.17.73.4. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:50.17.73.pr-50.17.73.4

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