oa Fundamina : A Journal of Legal History - Glanz der Rhetorik und finsternis der Logik in einer Entscheidung Marc Aurels (Marcell. D. 28,4,3 pr.-1)



In a case of the imperial reported by the jurist Marcellus the testator had erased the heirs from the testament. He had also erased a provision for a slave to be freed. The question arose whether the whole testament, which also contained legacies, was invalid because it lacked the institution of an heir, or whether the legacies and the provision for the slave to be freed should be considered legally valid. In Marcellus' opinion, the legacies ought to be considered legally valid, this being not only the most benign but also the most cautious solution to the problem. The emperor Marcus Aurelius accepted this approach, being convinced that the testator wanted to retain the legacies. This is quite a revolutionary decision in that it overrides the dogma of Roman jurisprudence "nemo pro parte testatus, pro parte intestatus decedere potest". However, the real punch line of the text is hidden in paragraph 1, which has erroneously been considered to be a separate case. The principle underlying the emperor's decision about the legacies is that everything should be done by the law to fulfil the testator's will. From this perspective, it is obvious that the provision for the slave to be freed ought to be void, since the testator had erased it. Marcus Aurelius followed, not this logical approach, but Marcellus' appeal to his humanity.


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