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Datio Tutoris

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Chapter Summary

Unlike a legacy and a grant of freedom, the datio tutoris did not reduce the inheritance. The majority of the Romanists have explained the controversy of the validity of a datio tutoris by means of the conservative/progressive antithesis. The fact that the Sabinians strictly observed the word order, as required in a testament, would demonstrate their rigor iuris and verbi ratio. The Proculians, on the other hand, attached great importance to the voluntas of the testator. They decided that a datio tutoris which preceded the heredis institutio was valid. According to Gaius, the Proculians held that a datio tutoris before the heredis institutio was valid, because, by the appointment of a tutor, nothing was taken out of the inheritance. The Proculians held that the datio tutoris was independent from the heredis institutio and, therefore, decided that it could precede the heredis institutio.

Keywords: datio tutoris; Gaius; heredis institutio; Proculians; Sabinians



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