Subsequent Theses on Controversial Law

Extracted chiefly from Books 5 and 6 of the Digest.

original: "ff."; a common abbreviation for the Pandects or Digest of Roman Law.

observation 21 and 3, observation 8, also 14, observation 14. Wesenbeck in the Paratitla of the Digest, this title, number 3; and on the Title of the Institutes, the same, number 1. Duaren, this chapter, 2 & 12. Tilemann, Pandect Disputations 13, Thesis 4. The legitima The "forced share" or "statutory portion" of an estate that close family members are legally entitled to receive, even if the deceased tried to disinherit them. is called the "natural fourth"; although in Rome it seems to have been introduced long ago through the interpretation of the Prudentes. The "Prudentes" or Jurisconsults were the professional legal scholars of ancient Rome whose opinions carried the force of law. See Antonio Contius, Subsequent Readings 1, chapter 3. Antonio Gouveia, 2 Variae 1. Tilemann, Pandect Disputations 13, Thesis 26. Antonius Matthaeus, Pandect Disputations 5, Thesis 13.

14. Even today, the use of the complaint of an undutiful will original: "querela inofficiosi"; a legal action to set aside a will that fails to provide for close relatives without a valid reason. remains. Donellus, 6 Commentaries 13 & 19, Commentary 4. Viglius, on the beginning of the Institutes, here. Antoine Favre, Decision 14, Error 7.

15. We consider that a codicillary clause A provision in a will stating that if the document fails as a formal testament, it should still be honored as a less formal codicil. does not prevent a testament from being "broken" by the birth of a posthumous child: provided, of course, that the omission original: "praeteritio"; the act of passing over a rightful heir in a will without mention. was not done knowingly. Gail, 2 observations 114. Menochio, counsel 449, book 5; and 4 Presumptions 32. Thessaurus, Piedmont Decisions 141. Fachinaeus, 4 Controversies 2. And thus, for a son, as well as for a posthumous child who was omitted through ignorance, the testament is invalidated regarding both the naming of heirs and the specific legacies; this holds true even under the New Law. Refers to the Justinianic reforms (the "Novels") which updated classical Roman Law. Law 30 on children and posthumous children; Law 17 on unjust or broken wills. Gail, 2 observations 112, from the beginning. Menochio, 2 Arbitrations 147.

16. If a son still under his father's power original: "filiofamilias"; a son who has not yet been legally emancipated from his father's authority. is passed over in his father’s will, he is not granted the "complaint of an undutiful will"; rather, he can declare the will to be null and void. Hackelmann, Illustrations 5, Thesis 2. But when a son has been disinherited by his father and the cause of ingratitude has been proven, the Grandson cannot be admitted to the complaint in his own person. Gomez, 1 Variae 11, number 21. Cujas on Law 6 of the Digest, on unjust or broken wills; and on Law 9, section 2, on children and posthumous children. Differing: Costalius on Law 6, final section; and on Law 14, here. Duaren in Commentaries, this chapter 8, at the end. Wesenbeck, counsel 71, number 16, etc.

17. Even Natural Children original: "Naturales Liberi"; children born out of wedlock. can lodge a complaint regarding an undutiful will. For although they do not have a standard "forced share" (legitima), Novel 89 A specific law in Justinian's legal updates. does not merely grant permission but actually imposes a necessity to leave them two ounces A standard unit of measurement for dividing an inheritance; two ounces represents one-sixth of the total estate. of the estate. To the contrary: Hotman, Disputations on Illegitimate Children, chapter 3. Cujas on Novel 18; and 2 observations 21; 3 observations 8; and 14 observations 4.

18. The legitima can still be left today under a title other than being formally named as an heir. Vaudus, 1 question 5. Tilemann, Pandect Disputations 13, Thesis 29, volume 1. Bustus on Law 8, section "if anyone by reason of death," number 2, here. Hackelmann, Illustrious Disputations 6, Thesis 12. Arumaeus, Disputations on the Laws 7, Thesis 21. See the Forensic Discourses of Marcellus in Lyclama à Nyeholt.

19. We consider that Novel 115, chapter 3 does not prevent parents from disinheriting children for equally grave, or even more serious causes. Fachinaeus, 6 Controversies 78. Cujas on Novel 18. Bronchorst, 3 Assertions of Contradictions 26. See Tilemann, Digest Disputations 13, Thesis 6, volume 1. However, the Religious Peace Refers to the Peace of Augsburg (1555) or the Peace of Westphalia (1648), which stabilized relations between Catholics and Protestants. in the Holy Roman-Germanic Empire does not permit the disinheritance of children because of their profession of the Reformed Religion Protestantism, specifically Lutheranism or Calvinism.; and vice versa. Friedrich Mindanus, 1 chapter 29, number 1. Jacob Alemann, consultation 10.