IV. Depositum/παρακαταθήκη und Vertrag zugunsten Dritter. Zu D. 32,37,5–6 (Scaev. 18 dig.) und C. 3,42,8 (Diocl.; a. 293)

Abstract

Summary D. 32,37,5 contains a testamentary disposition in Greek in which the testator refers to a deposit of 15.000 denarii. It was agreed that the testator (depositee) should pay the sum of money received from the depositor, together with interest, to a third party upon coming of age. The article seeks to show that the testator and the other persons involved are Romans and that the beneficiary third party received a fideicommissum. The fragment has nothing to do with a contract in favour of a third party. D. 32,37,6 is about the attempt of a Roman woman to circumvent the lack of testamenti factio of a beneficiary by renaming a testamentary donation. There is no substantive connection between § 5 and § 6. The rescript of the chancery of Diocletian in C. 3,42,8 (a. 293) cannot serve as evidence for the admission of a contract in favour of a third party. It was changed by the second Codex commission, as the reproduction of the version in the Codex Iustinianus’ 1st ed. in the index of Thalelaios shows. The actio utilis granted to the third at the end is an addition of the second Codex commission. In its original content, the constitution, in accordance with the principles of Roman law, did not grant the third party an action arising from an agreement in his favour.