CASE 170: Disqualifications
D. 38.17.1.6 (Ulpianus libro duodecimo ad Sabinum)
Qui operas suas ut cum bestiis pugnaret locavit quive rei capitalis damnatus neque restitutus est, ex senatus consulto Orphitiano ad matris hereditatem non admittebatur: sed humana interpretatione placuit eum admitti.
idem erit dicendum et si hic filius in eius sit potestate, qui in causa supra scripta sit, posse eum ex Orphitiano admitti.(Ulpian in the twelfth book on Sabinus)
A person who has hired out his services to fight wild beasts or who has been condemned on a capital charge and not been restored to his former status used to be barred from succession to his mother’s estate under the SC Orphitianum, but through a generous interpretation, it was decided to allow him to succeed.
The same principle must hold even in the case of a son who is in the potestas of a man who falls into one of these categories; namely that he is eligible for his mother’s estate under the Orphitianum.
1. A Harsher Rule. This statute was enacted in A.D. 178 (Justinian, Inst. 3.4 pr.). Evidently it contained certain disqualifications that are not in evidence for the SC Tertullianum (which, at least as interpreted by the jurists, allowed even prostitutes to benefit from its provisions). Why the harsher rule in this statute?
2. Relaxing the Rule. Ulpian's language (humana interpretatione placuit) suggests that an imperial decision lay behind the relaxation of the statutory prohibitions, an idea supported by the fact that this “interpretation” directly invalidates legislative provisions. Why would an emperor allow such persons to succeed to an intestate mothers estate? Note that the state confiscated the property of those convicted of a capital offense.
3. Other Professions. Does it seem likely that other professional types besides wild-beast fighters were included in the ban? What about prostitutes? Why would they not benefit from the relaxation in the same way?
4. A Disgraced Father. A son-in-power who receives an estate will see ownership of it pass to his pater familias (Case 114). Does Ulpian's holding make sense in light of the Discussion in the previous Case?