CHAPTER XXVII - Freedom without Manumission. Uncompleted Manumission

Summary

There are several types of case to consider.

I. Concubina. Justinian provided that if a man having no wife made a slave his concubine, and she so remained till his death, he saying nothing as to her status, she became free and her children ingenui, keeping their peculia, and subject to no patronal rights in the heres. This applied only if the will contained no provisions, e.g. a legacy of them, shewing a contrary intent. After varying legislation on legitimation3he further provided that if the dominus freed an ancilla and afterwards married her with written instrumenta dotis, the children already born should be ingenui for all purposes. It is idle to look for legal principle under these rules.

II. Cases of prima facie abortive gift. We have already considered the cases in which a beneficiary could be compelled to accept, so that, gifts took effect, and we shall soon consider the effect of refusal to carry out the gift after acceptance. Apart from this a gift failed if the gift or instrument on which it depended failed to take effect. But cases of exceptional relief were rather numerous. The following list cannot claim completeness.

1. (a) Relief against failure to enter under the will.

1. (i) An institutus enters ab intestato, omissa causa testamenti. The gift is good, retaining its modalities.

2. (ii) Suus heres institutus abstains. The gift is good if not in fraudem creditorum, which on such facts it is likely to be.

3. (iii) If the heres abstains for a price, he is compellable to buy the slave and free him.

4. […]