CASE 158: The State Intervenes
D. 37.12.5 (Papinianus libro undecimo Quaestionum)
style='font-size:8.0pt;line-height:120%'>Divus Traianus filium, quem pater male contra pietatem adficiebat, coegit emancipare.
quo postea defuncto, pater ut manumissor bonorum possessionem sibi competere dicebat: sed consilio Neratii Prisci et Aristonis ei propter necessitatem solvendae denegata est.(Papinian in the eleventh book of Questions of Law)
The deified Emperor Trajan forced a father to emancipate a son whom he was mistreating, in contravention of pietas. When the son later died, his father claimed that possession of the estate accrued to him as the (son’s) emancipator. On the advice of Neratius Priscus and Aristo, however, this (action) was denied to him on the ground that the emancipation had to be compelled.
1. Benefit. Does this text support the view that emancipation was thought to benefit a child?
2. Bonorum Possessio. Normally a father had a right, as a quasi patron, to the estate of his emancipated child (see Case 161). In this Case, is the fathers claim justified in formal legal terms? It should be noted that the emperors intervention is unusual and presumably motivated by a particularly callous instance of child abuse.
3. Pietas. Does pietas play a role here similar to that in other texts concerning potestas? See Cases 92, 94, and 156.