CASE 154: The Imitation of Nature
D. 28.2.23 pr. (Papinianus libro duodecimo Quaestionum) (= Ulpianus, D. 37.4.8.7)
Filio, quem pater post emancipationem a se factam iterum adrogavit, exheredationem antea scriptam nocere dixi: nam in omni fere iure sic observari convenit, ut veri patris adoptivus filius numquam intellegatur, ne imagine naturae veritas obumbretur, videlicet quod non translatus, sed redditus videretur: nec multum puto referre, quod ad propositum attinet, quod loco nepotis filium exheredatum pater adrogavit.
(Papinian in the twelfth book of his Questions of Law)
A father emancipated his son and subsequently adrogated him again. I gave my opinion that his previously executed disinheritance (of his son) remained effective (now) against the son. For in nearly every area of the law the accepted rule is that a son should never be regarded as having been adopted by his true (biological) father. The point is that the truth not be obscured through the imitation of nature, for the obvious reason that he seems to have been, not transferred, but restored (to his father’s power).
Nor do I believe that it makes much difference, as far as the present case is concerned, that the father adrogated his disinherited son as a grandson.
1. New Will Needed. Normally an adrogation or adoption made a new will necessary because it added a new suus heres, as did birth. In this Case, a father first emancipated his son and then, after the son was sui iuris, adrogated him. Is it likely that the fathers adrogation of the emancipated son, even if in legal terms apparently inadequate, was probably meant to supersede his earlier disinheritance? That is, can we assume that the father disinherited and emancipated the son to show his displeasure but then relented and tried to undo the damage by adrogation, though without changing his will? Compare Ulpian, D. 1.7.12: “After a person is freed from patriapotestas, he can later be honorably returned into (his natural fathers) potestas only by adoption.” But is it also possible that some fraudulent motive might underlie Papinians case?
2. Too Clever? Does Papinians comment suggest he believes that the father in this case has been overly clever? How precisely can the truth be “obscured through the imitation of nature”?
3. Adopting Grandchildren.
Persons might be adrogated or adopted as grandchildren by using as an intermediary a son-in-power (whose consent was needed: Paul, D. 1.7.6, citing Julian). In this way, for purposes of law the emancipated and adrogated son becomes his biological fathers grandson! A motive for doing this might be the childlessness of an older son, for example. Here, to judge from Paul, D. 1.7.10, it does not seem to have been necessary to redo the will in most circumstances. Does Papinian seem to stress the element of “imitation” over that of “nature”?4. Too Much of a Good Thing? Paul, D. 1.7.37.1: “One cannot adopt for a second time a person one has (previously) adopted and then emancipated or given in adoption.” Why?