L’errore nella cancellazione delle tabulae e la dottrina di Philipp Lotmar

D. 37.2.1, D. 28.4.1 pr.-3 and C. 6.23.12.1 attest to the regulation applicable to cases of deletion of the contents of testamentary tabulae. When the erasure has rendered the written text illegible, the deleted provisions cannot have any effect. In the case of legibility of the provision, late-classical jurisprudence and imperial chancellery base their decisions on the effective will of the deceased: if erasures have been made consulto by the testator, they must count as revocation of what has been canceled; if, instead, they have been carried out inconsulto, the deleted provisions are valid. In his monograph on the error, posthumously published, Philipp Lotmar considers the three passages, including them in the Vertretungsstellen with total substitution, referring to an external error and in which the substitution takes place by adverb (inconsulte/inconsulto). Looking at the three testimonies from the perspective of the error, one becomes aware that it has no role in determining the consequences of erasures when they have rendered the writing illegible; on the other hand, it has relevance, in an attempt to protect the voluntas of the testator and his freedom of revocation, when legibility is guaranteed: erasures made incorrectly will not be valid as revocation of what has been deleted.