Chapter 24: On legal instruments

1. _Voluntas_ (will) is the general name for all legal instruments, and it has received this name because it issues from free will, not from compulsion.

2. _Testamentum_ (will) is so named because, unless the testator dies, what is written in it cannot be established or known, since it is closed and sealed; and it is called _testamentum_ because it is not in effect until the burial of the testator (_testatoris monumentum_); whence the Apostle says: _Testamentum in mortuis confirmatur_.

3. _Testamentum_ has not only this meaning in the Holy Scriptures, that it is in effect only when the testators are dead, but they also called every agreement (_pactum et placitum_) _testamentum_; for Laban and Jacob made a _testamentum_ which was certainly to be in effect while they were living. And in the Psalms is read: _Adversum te testamentum disposuerunt_; and many others of the sort.

4. The _tabulae_ of a will are so called because not only wills but letters were written on hewn _tabulae_ (boards) before paper and parchment were used. Whence letter-carriers are called _tabularii_.

5. The testament of the civil law is made valid by the signature of five witnesses.

6. The testament of the praetorian law is sealed with the seals of seven witnesses; the former testament is made in the presence of citizens, and from that is called _civile_; the latter in the presence of the praetors, and thence is of the praetorian law.

7. A _testamentum holographum_ is one wholly written and signed in the hand-writing of the maker. From this it got its name. For the Greeks use the word ὅλον for whole, and γραφή for writing.

8. A testament has no legal force if its maker has forfeited his civil rights, or if it has not been made in due form.

9. A testament is _inofficiosum_ where an attempt has been made to disinherit the children and recourse has been had to persons outside [the family] without regard to the duty of natural affection.[298]

[298] See Muirhead, _The Law of Rome_, p. 249.

10. The _testamentum ruptum_ is so named because it is made void through the birth of a posthumous child who is neither disinherited nor made an heir by name.

11. A testament is suppressed when it is not publicly made known, to the injury of heirs or legatees or freedmen; and although it is not kept secret, it nevertheless is thought to be suppressed if it is not made known to the aforesaid persons.

12. _Nuncupatio_ (nuncupative will) is when the testator reads the will aloud, saying: “These things I thus give and bequeath as they are written on these tablets and on this wax; and do you Roman citizens be my witness”, and this is called _nuncupatio_. For _nuncupare_ means to name and confirm openly.

13. The _jus liberorum_ is the right of childless couples to name each other as heir in the place of children.

23. _Emptio_ (purchase) and _venditio_ (sale) is an exchange of goods and a contract arising from agreement.

24. _Emptio_ (purchase) is so called because it is _a me tibi_ (from me to you); _venditio_ is as it were _venundinatio_, that is, from _nundinae_ (market day).

27. _Donatio usufructuaria_ is so named because the giver retains the usufruct of the thing, the title vesting in him to whom it has been given.