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Justinian I · The Digest of Justinian §7.1.68.pr-7.1.68.1

Offspring of Slaves and Cattle in Usufruct

Passage 1239 of 9271 · Latin

Summary

Ulpian discusses the prevailing opinion of Brutus that the offspring of a slave does not belong to the usufructuary as fruit, while explaining that the offspring of cattle do belong to them, subject to the duty to replenish the herd for deceased animals.

[ULPIANUS libro septimo decimo ad Sabinum. ] §7.1.68.prUetus fuit quaestio, an partus ad fructuarium pertineret: sed Bruti sententia optinuit fructuarium in eo locum non habere: neque enim in fructu hominis homo esse potest.
[ULPIANUS libro septimo decimo ad Sabinum.] It was an old question whether the offspring of a slave belonged to the usufructuary; but the opinion of Brutus prevailed, that the usufructuary has no right in it; for a human being cannot be among the fruits of a human being.
hac ratione nec usum fructum in eo fructuarius habebit.
For this reason, the usufructuary will not even have a usufruct in it.
quid tamen si fuerit etiam partus usus fructus relictus, an habeat in eo usum fructum? et cum possit partus legari, poterit et usus fructus eius.
But what if the usufruct of the offspring itself has also been bequeathed? Would he have a usufruct in it? And since the offspring can be bequeathed, its usufruct can be as well.
§7.1.68.1Fetus tamen pecorum Sabinus et Cassius opinati sunt ad fructuarium pertinere.
However, Sabinus and Cassius were of the opinion that the offspring of cattle belong to the usufructuary.
Plane si gregis uel armenti sit usus fructus legatus, debebit ex adgnatis gregem supplere, id est in locum capitum defunctorum
Clearly, if the usufruct of a flock or a herd has been bequeathed, he must replenish the flock from the offspring, that is, in the place of the deceased head of cattle.

Notes

  1. §7.1.68.prlocum non habere — Literally "not to have a place," but here it means that the usufructuary has no legal standing, share, or right in the offspring as an object of usufruct.
  2. §7.1.68.prin fructu hominis homo — The rationale regarding whether the offspring of a female slave (partus ancillae) constitutes "fruit" (fructus) in a legal sense. It represents a famous legal maxim reflecting the view that a human being cannot be treated as the "fruit" of another human being.
  3. §7.1.68.1ex adgnatis — Ablative of adgnata (neuter plural of the perfect participle of adnascor, "to be born in addition"), referring to the newly born offspring or additions to the herd. It must not be confused with the family-law term "agnati" (paternal relatives).

Cite this passage

Justinian I, The Digest of Justinian §7.1.68.pr-7.1.68.1. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:7.1.68.pr-7.1.68.1

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