CASE 184: Subfecundity*
D. 28.2.6 (Ulpianus libro tertio ad Sabinum)
(pr.) Sed est quaesitum, an is, qui generare facile non possit, postumum heredem facere possit, et scribit Cassius et lavolenus posse: nam et uxorem ducere et adoptare potest.
spadonem quoque posse postumum heredem scribere et Labeo et Cassius scribunt: quoniam nec aetas nec sterilitas ei rei impedimento est. (1) Sed si castratus sit, Iulianus Proculi opinionem secutus non putat postumum heredem posse instituere, quo iure utimur. (2) Hermaphroditus plane, si in eo virilia praevalebunt, postumum heredem instituere poterit.(Ulpian in the third book on Sabinus)
(pr.) But a question has been raised as to whether a person who cannot readily procreate can institute a postumus as heir. Both Cassius and Javolenus write that he can, for he is capable of both marrying and adopting. That a eunuch (spado) too can institute a postumus as heir both Labeo and Cassius agree, because neither age nor procreative incapacity is an obstacle to doing this.
(1) But if he was castrated, Julian, following the view of Proculus, thinks that he cannot institute a postumus as heir, and this is the rule we follow. (2) A hermaphrodite, to be sure, if his male characteristics predominate, can institute a postumus as heir.
1. Difficult Procreation. Ulpian first gives the view of Cassius and Javolenus that “a person who cannot readily procreate” can still institute a postumus as heir. Is this because there is still a chance that he could produce a postumus? Why do the jurists not explicitly use this rationale? Why should it matter that he can marry and adopt? (On marriage and adoption, see Cases 8, 150.)
2. The Eunuch.
Ulpian then reports Labeo and Cassius to the effect that a eunuch (spado) can institute a postumus as heir, since “neither age nor procreative incapacity is an obstacle to doing this.” What do they mean? Are they suggesting that complete certainty about the inability to procreate is impossible?3. Controversy. The presence of so many jurists' names in this passage suggests a controversy, which you should try to reconstruct. The Latin word for “eunuch,” spado, sometimes includes male sterility no matter how it arises. Is it clear that Cassius and Labeo disagree with Proculus, Julian, and Ulpian as to the castrated man? Why does Ulpian support the negative position on the castrated eunuch? Does the case of the hermaphrodite help at all to explain his decision?
4. An Objective View? With this Case, compare Paul, D. 28.2.9 pr.: “If anyone institutes as his heirs postumi whom he happens to be unable to have because of age or ill health, his prior will is rendered invalid, for the nature and practice of human procreation should be considered more significant than a temporary defect or illness whereby a person is deprived of the capacity to procreate.” Is Paul's standard different from Ulpian’s?
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- Frier Bruce W., McGinn Thomas A.J.. A casebook on Roman family law. Oxford University Press,2004. — xxi+506 p., 2004