Justinian: DIGESTA

Nam sicut moribus civilia officia adempta sunt feminis et pleraque ipso iure non valent, ita multo magis adimendum eis fuit id officium, in quo non sola opera nudumque ministerium earum versaretur, sed etiam periculum rei familiaris.

For just as, by custom, civil offices have been taken away from women and most things are not valid by the law itself, so much the more that office ought to be taken from them, in which not only their labor and bare ministry would be engaged, but also the peril of the family estate.

Dig. 16.1.1.2

Digest 16.1.1.2

Paulus 30 ad ed.

Paulus 30 on the Edict.

Aequum autem visum est ita mulieri succurri, ut in veterem debitorem aut in eum, qui pro se constituisset mulierem ream, actio daretur: magis enim ille quam creditor mulierem decepit.

However, it has seemed equitable thus to succor the woman, that an action be given against the former debtor or against the one who, on his own behalf, had constituted the woman as defendant; for he, rather than the creditor, deceived the woman.

Dig. 16.1.2pr.

Digest 16.1.2, preface.

Ulpianus 29 ad ed.

Ulpian book 29 on the Edict.

Et primo quidem temporibus divi augusti, mox deinde claudii edictis eorum erat interdictum, ne feminae pro viris suis intercederent.

And at first indeed, in the times of the deified Augustus, then soon thereafter of Claudius, by their edicts it was interdicted that women intercede for their husbands.

Dig. 16.1.2.1

Digest 16.1.2.1

Ulpianus 29 ad ed.

Ulpian 29 On the Edict.

Postea factum est senatus consultum, quo plenissime feminis omnibus subventum est. cuius senatus consulti verba haec sunt: " quod marcus silanus et velleus tutor consules verba fecerunt de obligationibus feminarum, quae pro aliis reae fierent, quid de ea re fieri oportet, de ea re ita censuere: quod ad fideiussores et mutui dationes pro aliis, quibus intercesserint feminae, pertinet, tametsi ante videtur ita ius dictum esse, ne eo nomine ab his petitio neve in eas actio detur, cum eas virilibus officiis fungi et eius generis obligationibus obstringi non sit aequum, arbitrari senatum recte atque ordine facturos ad quos de ea re in iure aditum erit, si dederint operam, ut in ea re senatus voluntas servetur".

Afterwards a senatus‑consult was made, by which most fully aid was brought to all women. The words of this senatus‑consult are these: "Since Marcus Silanus and Velleus Tutor, consuls, spoke about the obligations of women who became defendants on behalf of others, what ought to be done about that matter, they thus resolved as to that matter: as regards sureties and loans of mutuum given for others, in which women have interceded, although previously the law seems to have been laid down thus, that under that head neither a demand be made from them nor an action be granted against them, since it is not equitable that they perform virile offices and be bound by obligations of that kind, the senate is of the opinion that those before whom approach shall be made in iure about that matter will act rightly and in due order, if they take care that in that matter the will of the senate is observed".

Dig. 16.1.2.2

Digest 16.1.2.2

Ulpianus 29 ad ed.

Ulpian 29 on the Edict.

Verba itaque senatus consulti excutiamus prius providentia amplissimi ordinis laudata, quia opem tulit mulieribus propter sexus inbecillitatem multis huiuscemodi casibus suppositis atque obiectis.

Therefore let us examine the words of the senatus consultum first, with the foresight of the most ample order praised, because it brought aid to women on account of the weakness of the sex, many cases of this kind having been adduced and objected.

Dig. 16.1.2.3

Digest 16.1.2.3

Ulpianus 29 ad ed.

Ulpian, 29 on the Edict.

Sed ita demum eis subvenit, si non callide sint versatae: hoc enim divus pius et severus rescripserunt. nam deceptis, non decipientibus opitulatur et est et graecum severi tale rescriptum: tais apatwsais gunaicin to dogma tys sugklytou boulys ou boyvei. infirmitas enim feminarum, non calliditas auxilium demeruit.

But it comes to their aid only on this condition, if they have not been cunningly maneuvered: for the deified Pius and Severus wrote this in rescripts. For it brings help to the deceived, not to the deceiving; and there is also such a Greek rescript of Severus: for women who have deceived the decree of the senate does not help. For it is the infirmity of women, not their cleverness, that has deserved assistance.

Dig. 16.1.2.4

Digest 16.1.2.4

Ulpianus 29 ad ed.

Ulpian, 29 on the Edict.

Omnis omnino obligatio senatus consulto velleiano comprehenditur, sive verbis sive re sive quocumque alio contractu intercesserint.

Every obligation without exception is encompassed by the Velleian senatorial decree, whether they have interceded by words, by thing, or by any other contract.

Dig. 16.1.2.5

Digest 16.1.2.5

Ulpianus 29 ad ed.

Ulpian 29 on the Edict.

Sed et si mulier defensor alicuius exstiterit, procul dubio intercedit: suscipit enim in se alienam obligationem, quippe cum ex hac re subeat condemnationem. proinde neque maritum neque filium neque patrem permittitur mulieri defendere.

But also if a woman has stood forth as the defender of someone, without doubt she intercedes: for she takes upon herself an alien obligation, since from this matter she incurs a condemnation. accordingly, neither husband nor son nor father is a woman permitted to defend.

Dig. 16.1.3

Digest 16.1.3

Paulus 30 ad ed.

Paul 30 on the Edict.

Sed si eum defendat, qui damnatus regressum ad eam habeat, veluti cum venditorem hereditatis sibi venditae vel fideiussorem suum defendat, intercedere non videtur.

But if she defends one who, if condemned, would have regress/recourse against her—namely, when she defends the seller of an inheritance sold to herself or her own surety (fideiussor)—she is not deemed to intercede.

Dig. 16.1.4pr.

Digest 16.1.4, preface.

Ulpianus 29 ad ed.

Ulpian, 29 on the Edict.

Sed si ego cum muliere ab initio contraxerim, cum ignorarem cui haec factum vellet, non dubio senatus consultum cessare: et ita divus pius et imperator noster rescripserunt.

But if I contracted with the woman from the beginning, since I was unaware for whom she wished these things to be done, there is no doubt that the senatus consultum is inoperative: and thus the deified Pius and our emperor have issued rescripts.

Dig. 16.1.4.1

Digest 16.1.4.1

Ulpianus 29 ad ed.

Ulpian 29 on the Edict.

Proinde si, dum vult titio donatum, accepit a me mutuam pecuniam et eam titio donavit, cessabit senatus consultum. sed et si tibi donatura creditori tuo nummos numeraverit, non intercedit: senatus enim obligatae mulieri succurrere voluit, non donanti: hoc ideo, quia facilius se mulier obligat quam alicui donat.

Accordingly, if, while she desires a gift to Titius, she has received from me a loan of money and donated it to Titius, the senatorial decree will cease to operate. But even if, being about to make you a gift, she has counted out coins to your creditor, it does not intervene: for the senate wished to succor a woman who has become obligated, not one who is making a donation. This is for the reason that a woman more readily obligates herself than gives to someone.

Dig. 16.1.5

Digest 16.1.5

Gaius 9 ad ed. provinc.

Gaius 9 on the provincial edict.

Nec interest, pecuniam solvendi causa numeret an quamlibet suam rem in solutum det: nam et si vendiderit rem suam, sive pretium acceptum pro alio solvit sive emptorem delegavit creditori alieno, non puto senatus consulto locum esse.

Nor does it matter whether he counts out money for the purpose of payment or gives any of his own property in settlement: for even if he has sold his own property, whether he pays with the price received on behalf of another or delegates the purchaser to the creditor of another, I do not think the senatorial decree has application.

Dig. 16.1.6

Digest 16.1.6

Ulpianus 29 ad ed.

Ulpian 29 on the edict.

Si fideiussores pro defensore absentis filii ex mandato matris eius intercesserint, quaeritur, an etiam his senatus consulto subveniatur. et ait papinianus libro nono quaestionum exceptione eos usuros: nec multum facere, quod pro defensore fideiusserunt, cum contemplatione mandati matris intervenerunt. plane, inquit, si qui accepit eos fideiussores, matrem eis mandasse ignoravit, exceptionem senatus consulti replicatione doli repellendam.

If sureties have interceded for the defensor of her absent son by the mandate of his mother, the question is asked whether assistance is granted to them as well by the senatus consultum. And Papinian, in the ninth book of Questions, says that they will use the exception; nor does it make much difference that they stood surety for a defensor, since they intervened in contemplation of the mother’s mandate. Clearly, he says, if the one who accepted them as sureties was unaware that the mother had mandated them, the exception of the senatus consultum is to be repelled by a replication of fraud (dolus).

Dig. 16.1.7

Digest 16.1.7

Papinianus 9 quaest.

Papinian, Questions, Book 9.

Quamquam igitur fideiussor doli replicatione posita defensionem exceptionis amittit ^ amittat^, nullam tamen replicationem adversus mulierem habebit, quia facti non potest ignorationem praetendere. sed non erit iniquum dari negotiorum gestorum actionem in defensorem, quia mandati causa per senatus consultum constituitur irrita et pecunia fideiussoris liberatur.

Although, therefore, the surety, when a replication of fraud has been put forward, loses the defense of the exception ^ amittat^, nevertheless he will have no replication against the woman, because he cannot plead ignorance of the fact. But it will not be inequitable that the action for the management of business be given against the defender, because the cause of mandate is rendered void by a senatorial decree and the money of the surety is released.

Dig. 16.1.8pr.

Digest 16.1.8, preface.

Ulpianus 29 ad ed.

Ulpian 29 on the Edict.

Quamvis pignoris datio intercessionem faciat, tamen iulianus libro duodecimo digestorum scribit redditionem pignoris, si creditrix mulier rem, quam pignori acceperat, debitori liberaverit, non esse intercessionem.

Although the giving of a pledge constitutes intercession, nevertheless Julianus, in book 12 of the Digest, writes that the redelivery of a pledge—if a woman creditor has released to the debtor the thing which she had received in pledge—is not intercession.

Dig. 16.1.8.1

Digest 16.1.8.1

Ulpianus 29 ad ed.

Ulpian, 29 on the Edict.

Si mulier intervenerit apud tutores filii sui, ne hi praedia eius distraherent, et indemnitatem eis repromiserit, papinianus libro nono quaestionum non putat eam intercessisse: nullam enim obligationem alienam recepisse neque veterem neque novam, sed ipsam fecisse hanc obligationem.

If a woman has intervened with the guardians of her son, so that they would not sell off her estates, and has promised them indemnity, Papinian, in the ninth book of the Questions, does not think that she has interceded: for she has taken on no obligation of another, neither old nor new, but has herself made this obligation.

Dig. 16.1.8.2

Digest 16.1.8.2

Ulpianus 29 ad ed.

Ulpian, 29 on the Edict.

Si mulier apud primum pro secundo intervenerit, mox pro primo apud creditorem eius, duas intercessiones factas iulianus libro duodecimo digestorum scribit, unam pro secundo apud primum, aliam pro primo apud creditorem eius, et ideo et primo restitui obligationem et adversus eum. Marcellus autem notat esse aliquam differentiam, utrum hoc agatur, ut ab initio mulier in alterius locum subdatur et onus debitoris, a quo obligationem transferre creditor voluit, suscipiat, an vero quasi debitrix delegetur, scilicet ut, si quasi debitrix delegata est, una sit intercessio. proinde secundum hanc suam distinctionem in prima visione, ubi quasi debitrix delegata est, exceptionem ei senatus consulti Marcellus non daret: sed condemnata vel ante condemnationem condicere utique ei a quo delegata est poterit vel quod ei abest vel, si nondum abest, liberationem.

If a woman has interceded with the first on behalf of the second, and soon after on behalf of the first with his creditor, Julian in book 12 of the Digest writes that two intercessions have been made: one for the second with the first, the other for the first with his creditor; and therefore the obligation is to be restored to the first, and against him. But Marcellus notes that there is some difference, whether this is being done so that from the beginning the woman is substituted into another’s place and assumes the burden of the debtor from whom the creditor wished to transfer the obligation, or rather that she is delegated as if a debtor; namely, that if she has been delegated as a quasi-debtor, there is one intercession. Accordingly, following this his distinction, on the first view, where she has been delegated as a quasi-debtor, Marcellus would not grant to her the exception of the senatus consultum; but, once condemned, or before condemnation, she will in any case be able to bring a condictio against the one by whom she was delegated either for what is lacking to her, or, if it is not yet lacking, for liberation.

Dig. 16.1.8.3

Digest 16.1.8.3

Ulpianus 29 ad ed.

Ulpian 29 on the edict.

Interdum intercedenti mulieri et condictio competit, ut puta si contra senatus consultum obligata debitorem suum delegaverit: nam hic ipsi competit condictio, quemadmodum, si pecuniam solvisset, condiceret: solvit enim et qui reum delegat.

Sometimes even to a woman interceding a condictio is competent, for instance if, contrary to the senatorial decree, being bound she has delegated her debtor: for here the condictio is available to her herself, just as, if she had paid the money, she would bring a condictio; for he also pays who delegates the debtor.

Dig. 16.1.8.4

Digest 16.1.8.4

Ulpianus 29 ad ed.

Ulpian, 29 on the Edict.

Sed si is, qui a muliere delegatus est, debitor eius non fuit, exceptione senatus consulti poterit uti, quemadmodum mulieris fideiussor.

But if the person who was delegated by the woman was not her debtor, he will be able to use the exception of the senatorial decree, just as the woman’s surety.

Dig. 16.1.8.5

Digest 16.1.8.5

Ulpianus 29 ad ed.

Ulpian 29 on the Edict.

Plane si mulier intercessura debitorem suum delegaverit, senatus consultum cessat, quia et si pecuniam numerasset, cessaret senatus consultum: mulier enim per senatus consultum relevatur, non quae deminuit, restituitur.

Plainly, if a woman, about to intercede, has delegated her debtor, the senatus consultum ceases to apply, because even if she had counted out the money, the senatus consultum would cease: for a woman is relieved by the senatus consultum; she who has diminished is not restored.

Dig. 16.1.8.6

Ulpianus 29 ad ed.

Ulpian, 29 on the Edict.

Sed si eum delegaverit qui debitor eius non fuit, fraus senatus consulto facta videbitur et ideo exceptio datur.

But if he has delegated someone who was not his debtor, fraud will be seen to have been committed against the senatorial decree, and therefore an exception is granted.

Dig. 16.1.8.7

Digest 16.1.8.7

Ulpianus 29 ad ed.

Ulpian 29 on the Edict.

Quotiens pro debitore intercesserit mulier, datur in eum pristina actio, etsi ille prius acceptilatione liberatus sit quam mulier intercesserit.

Whenever a woman has interceded on behalf of a debtor, the original action is granted against him, even if he had previously been released by acceptilation before the woman interceded.

Dig. 16.1.8.8

Digest 16.1.8.8

Ulpianus 29 ad ed.

Ulpian 29 on the Edict.

Si convenerit cum debitore, ut expromissorem daret, et acceptum ei latum sit, deinde is dederit mulierem quae auxilio senatus consulti munita est, potest ei condici, quasi non dedisset: quid enim interest, non det an talem det? non erit igitur actio utilis necessaria, cum condictio competat.

If it has been agreed with the debtor that he should provide an expromissor, and it has been entered to his account as received, then if he has provided a woman who is protected by the aid of the senatus consultum, a condictio can be brought against him, as though he had not provided one: for what difference is there, whether he does not provide, or provides such a one? A useful action will therefore not be necessary, since the condictio lies.

Dig. 16.1.8.9

Digest 16.1.8.9

Ulpianus 29 ad ed.

Ulpian 29 on the edict.

Marcellus quoque scribit, si mulieri post intercessionem accepto tulerit creditor, nihilo minus restitutoriam actionem ei dari debere: inanem enim obligationem dimisit.

Marcellus likewise writes that, if to a woman, after her intercession, the creditor has entered it as received (by acceptilation), nonetheless a restitutionary action ought to be given to her: for he released an empty obligation.

Dig. 16.1.8.10

Digest 16.1.8.10

Ulpianus 29 ad ed.

Ulpian 29 on the Edict.

Si mulier post intercessionem sic solverit, ne repetere possit, iuste prior debitor actionem recusat. sed cum relevatur reus, si mulier sic solvit, ut repetere non possit, et cum ei mulieri, quae repetere non poterat, si solvisset, accepto tulit creditor, similiter relevatur reus.

If, after intercession, a woman should so pay that she cannot recover, the prior debtor justly refuses the action. But the defendant is released as well, if the woman pays in such a way that she cannot recover; and when the creditor has entered it as received for that woman who, if she had paid, could not have recovered, the defendant is likewise released.

Dig. 16.1.8.11

Digest 16.1.8.11

Ulpianus 29 ad ed.

Ulpian, 29 on the Edict.

Quamquam in omnes qui liberati sunt restituitur actio, non tamen omnibus restituitur. ut puta duo rei stipulandi fuerunt: apud alterum mulier intercessit: ei soli restituitur obligatio, apud quem intercessit.

Although the action is restored against all who have been released, nevertheless it is not restored to everyone. For instance, there were two co-stipulators: with one of them a woman interceded; to that one alone is the obligation restored, with whom she interceded.

Dig. 16.1.8.12

Digest 16.1.8.12

Ulpianus 29 ad ed.

Ulpian 29 on the edict.

Si mulieri heres extiterit creditor, videndum, an restitutoria uti non possit. et ait iulianus libro duodecimo restitutoria eum nihilo minus usurum, non immerito, cum non obligatae cum effectu successerit: denique in falcidia hoc aes alienum non imputabitur.

If a creditor has turned out as heir to a woman, it must be considered whether he cannot make use of the restitutory relief. And Julian, in book twelve, says that he will nonetheless make use of the restitutory relief, not without reason, since he has succeeded to one not obligated with effect: finally, in the Falcidian calculation this debt will not be imputed.

Dig. 16.1.8.13

Digest 16.1.8.13

Ulpianus 29 ad ed.

Ulpian 29 on the Edict.

Plane si mihi proponas mulierem veteri debitori successisse, dicendum erit restitutoria eam conveniri posse, sed et directa actione: nihil enim eius interest, qua actione conveniatur.

Clearly, if you put to me that a woman has succeeded to the former debtor, it must be said that she can be convened by the restitutory action, but also by the direct action: for it is nothing to her interest by which action she is convened (sued).

Dig. 16.1.8.14

Digest 16.1.8.14

Ulpianus 29 ad ed.

Ulpian 29 on the Edict.

Si, cum essem tibi contracturus, mulier intervenerit, ut cum ipsa potius contraham, videtur intercessisse: quo casu datur in te actio, quae instituit magis quam restituit obligationem, ut perinde obligeris eodem genere obligationis, quo mulier est obligata: verbi gratia si per stipulationem mulier, et tu quasi ex stipulatu convenieris.

If, when I was about to contract with you, a woman has intervened so that I contract rather with her, she is considered to have interceded; in which case an action is given against you, one which institutes rather than restores the obligation, so that you are bound in the same kind of obligation in which the woman is bound: for example, if the woman (is bound) by stipulation, you too are convened as if from stipulation.

Dig. 16.1.8.15

Digest 16.1.8.15

Ulpianus 29 ad ed.

Ulpian 29 On the Edict

Illud videndum est, si mulier pro eo intervenit, qui, si cum ipso contractum esset, non obligaretur, an hac actione ille debeat teneri? ut puta si pro pupillo intercessit, qui sine tutoris auctoritate non obligatur. et puto non obligari pupillum, nisi locupletior factus est ex hoc contractu.

This must be considered: if a woman has intervened on behalf of someone who, if the contract had been made with him himself, would not be obligated, whether by this action that person ought to be held liable? For instance, if she interceded for a ward, who without the tutor’s authority is not obligated. And I think the ward is not obligated, unless he has been made more wealthy from this contract.

item si minor viginti quinque annis sit, pro quo mulier intercessit, in integrum restitutionem poterit implorare: vel filius contra senatus consultum contracturus est.

likewise, if he is under twenty-five years, for whom a woman has interceded, he will be able to implore restitution in integrum: or a son is about to contract contrary to the senatorial decree.

Dig. 16.1.9

Digest 16.1.9

Paulus 6 reg.

Paulus book 6 of the Rules.

Sed si pro alieno servo intercedat, quemadmodum in patrem familias priorem reum restituitur actio, ita in dominum quoque restituenda erit.

But if he intercedes on behalf of another’s slave, just as the action is restored against the paterfamilias, the prior defendant, so too it will have to be restored against the master.

Dig. 16.1.10

Digest 16.1.10

Ulpianus 29 ad ed.

Ulpian, book 29 on the Edict.

Hae actiones, quae in eos pro quibus mulier intercessit dantur, et heredibus et in heredes et perpetuo competunt: habent enim rei persecutionem: ceteris quoque honorariis successoribus dabuntur et adversus eos.

These actions, which are given against those for whom a woman interceded, both belong to heirs and lie against heirs, and perpetually: for they have the prosecution of the thing: they will also be given to the other honorary successors and against them.

Dig. 16.1.11

Digest 16.1.11

Paulus 30 ad ed.

Paulus 30 on the Edict.

Si mulier tamquam in usus suos pecuniam acceperit alii creditura, non est locus senatus consulto: alioquin nemo cum feminis contrahet, quia ignorari potest, quid acturae sint.

If a woman, as though for her own uses, has received money, being about to lend it to another, there is no place for the senatus consultum; otherwise no one would contract with women, since it can be unknown what they are going to do.

Dig. 16.1.12

Digest 16.1.12

Paulus 6 brev.

Paul 6 breviary.

Immo tunc locus est senatus consulto, cum scit creditor eam intercedere.

Rather, then there is room for the senatus consultum, when the creditor knows that she is interceding.

Dig. 16.1.13pr.

Digest 16.1.13pr.

Gaius 9 ad ed. provinc.

Gaius 9 On the Provincial Edict

Aliquando, licet alienam obligationem suscipiat mulier, non adiuvatur hoc senatus consulto: quod tum accidit, cum prima facie quidem alienam, re vera autem suam obligationem suscipiat. ut ecce si ancilla ob pactionem libertatis expromissore dato post manumissionem id ipsum suscipiat quod expromissor debeat, aut si hereditatem emerit et aes alienum hereditarium in se transcribat, aut si pro fideiussore suo intercedat.

Sometimes, although a woman undertakes another’s obligation, she is not aided by this senatorial decree: which happens when, at first sight indeed she undertakes another’s, but in reality her own obligation. For example, if a female slave, on account of a pact for liberty, an expromissor having been provided, after manumission takes upon herself that very thing which the expromissor owes; or if she has bought an inheritance and transcribes the hereditary debt onto herself; or if she intercedes on behalf of her surety.

Dig. 16.1.13.1

Digest 16.1.13.1

Gaius 9 ad ed. provinc.

Gaius 9 on the provincial edict.

De pignoribus prioris debitoris non est creditori nova actione opus, cum quasi serviana ( quae et hypothecaria vocatur) in his utilis sit: quia verum est convenisse de pignoribus nec solutam esse pecuniam.

Concerning the pledges of a prior debtor, the creditor has no need of a new action, since the quasi‑Servian (which is also called the hypothecary) action is available in these matters: because it is true that an agreement was made about the pledges and that the money has not been paid.

Dig. 16.1.13.2

Digest 16.1.13.2

Gaius 9 ad ed. provinc.

Gaius 9 on the Provincial Edict.

Si sub condicione vel in diem mulier pro alio intercesserit, etiam pendente condicione volenti creditori cum priore debitore experiri actio danda est restitutoria: quo enim bonum est exspectare condicionem vel diem, cum in ea causa sit prior iste debitor, ut omnimodo ipse debeat suscipere actionem?

If under a condition or for a term a woman has interceded on behalf of another, even while the condition is pending a restitutory action is to be granted, if the creditor is willing to proceed against the prior (principal) debtor; for what good is it to wait for the condition or the day, since that prior debtor is in such a position that he ought in every way himself to assume the action?

Dig. 16.1.14

Digest 16.1.14

Iulianus 12 Dig.

Julian 12 Dig.

Si mulier contra senatus consultum intercesserit, aequum est non solum in veterem debitorem, sed et in fideiussores eius actionem restitui: nam cum mulieris persona subtrahatur creditori propter senatus consultum, integra causa pristina restituenda est.

If a woman has interceded contrary to the senatorial decree, it is equitable that the action be restored not only against the original debtor but also against his sureties; for since the woman’s person is withdrawn from the creditor on account of the senatorial decree, the pristine cause must be restored entire.

Dig. 16.1.15

Digest 16.1.15

Iulianus 51 Dig.

Julian 51 Dig.

Si mulieri solvero id quod tibi debebam et ab ea ratam rem te habiturum stipulatus fuero et forte te ratum non habente agere ex stipulatu instituero, exceptio senatus consulti, quod de intercessionibus feminarum factum est, non proderit mulieri: non enim videri potest alienam obligationem recusare, cum maneam debito obligatus, et ipsa de lucro agat ac potius reddere cogatur quod non debitum acceperat, quam pro alio solvere.

If I have paid to a woman that which I owed to you, and shall have stipulated from her that you will hold the matter ratified, and, if perchance you do not hold it ratified, I institute an action ex stipulatu, the exception of the senatus consultum, which was made concerning the intercessions of women, will not benefit the woman: for she cannot be seen to refuse another’s obligation, since I remain bound by the debt, and she herself is dealing with lucre and is rather compelled to return what she had received as not owed, than to pay for another.

Dig. 16.1.16pr.

Digest 16.1.16, preface.

Iulianus 4 ad urs. ferocem.

Julian 4 to Urs. Ferox.

Si mulier contra senatus consultum velleianum pro me intercessisset titio egoque mulieri id solvissem et ab ea titius eam pecuniam peteret, exceptio huius senatus consulti non est profutura mulieri: neque enim eam periclitari, ne eam pecuniam perdat, cum iam eam habeat.

If a woman, contrary to the Velleian senatus-consult, had interceded on my behalf to Titius, and I had paid that sum to the woman, and Titius were to demand that money from her, the exception of this senatus-consult will not be of use to the woman: for she is not in peril of losing that money, since she already has it.

Dig. 16.1.16.1

Digest 16.1.16.1

Iulianus 4 ad urs. ferocem.

Julian 4 on Urseius Ferox.

Si ab ea muliere, quae contra senatus consultum intercessisset, fideiussorem accepissem, gaius cassius respondit ita demum fideiussori exceptionem dandam, si a muliere rogatus fuisset. iulianus autem recte putat fideiussori exceptionem dandam, etiamsi mandati actionem adversus mulierem non habet, quia totam obligationem senatus improbat et a praetore restituitur prior debitor creditori.

If from that woman who had interceded contrary to the senatorial decree I had accepted a surety, Gaius Cassius answered that only then should an exception be given to the surety, if he had been solicited by the woman. Julian, however, rightly thinks that an exception should be given to the surety even if he does not have an action on mandate against the woman, because the senate disapproves the whole obligation, and by the praetor the prior debtor is restored to the creditor.

Dig. 16.1.17pr.

Digest 16.1.17pr.

Africanus 4 quaest.

Africanus Questions, book 4.

Vir uxori donationis causa rem viliori pretio addixerat et in id pretium creditori suo delegaverat. respondit venditionem nullius momenti esse et, si creditor pecuniam a muliere peteret, exceptionem utilem fore, quamvis creditor existimaverit mulierem debitricem mariti fuisse: nec id contrarium videri debere ei, quod placeat, si quando in hoc mulier mutuata est, ut marito crederet, non obstaturam exceptionem, si creditor ignoraverit in quam causam mulier mutuaretur, quoniam quidem plurimum intersit, utrum cum muliere quis ab initio contrahat an alienam obligationem in eam transferat: tunc enim diligentiorem esse debere.

A man, for the cause of a donation, had sold (i.e., conveyed) a thing to his wife at a cheaper price and had delegated his creditor to that price. He replied that the sale is of no moment, and that, if the creditor were to demand the money from the woman, a useful exception would be available, although the creditor supposed that the woman had been the husband’s debtor; nor should this seem contrary to the accepted view that, if ever a woman has borrowed for this very purpose—that she might credit her husband—the exception will not stand in the way if the creditor was ignorant for what cause the woman was borrowing, since indeed it makes a very great difference whether one contracts with the woman from the beginning, or transfers another’s obligation onto her: for in the latter case he ought to be more diligent.

Dig. 16.1.17.1

Digest 16.1.17.1

Africanus 4 quaest.

Africanus 4 questions.

Si mulier dixisset sibi rem dotis nomine obligatam et creditor curasset ei pecuniam dotis solvi, qui idem pignus acciperet, mulieri etiam pecunia credita deberetur: si possessor creditor adversus eam serviana agentem exciperet " si non voluntate eius pignus datum esset", replicationem mulieri senatus consulti non profuturam, nisi creditor scisset etiam aliam pecuniam ei deberi.

If a woman had said that a thing was encumbered to her in the name of dowry, and a creditor, who accepted the same pledge, had taken care that the dowry-money be paid to her, the money lent would also be owed to the woman: if the creditor-possessor, against her bringing the Servian action, were to except “if the pledge had not been given with her consent,” the replication for the woman under the senatus consultum would not be of benefit, unless the creditor had known that another sum of money was also owed to her.

Dig. 16.1.17.2

Digest 16.1.17.2

Africanus 4 quaest.

Africanus 4 questions.

Mulier et titius, cum in rem communem mutuarentur, eiusdem pecuniae rei facti sunt: non omnimodo mulierem pro parte socii videri intercessisse dicebat. nam si ob eam causam mutuati fuerint, ex qua, si creditor pecuniam non dedisset, maius damnum mulier passura fuerat, veluti quod communis insula fulta non esset vel quod fundus communis in publicum committeretur, potius esse, ut senatus consulto locus non sit. at si in aliquam emptionem mutua pecunia sit accepta, tunc pro parte intercessionem factam videri et ideo creditorem partem dumtaxat pecuniae a muliere petere posse: quod si totum petierit, exceptione pro parte summovetur.

A woman and titius, when they borrowed for a common matter, became liable (rei) for the same sum: he said that the woman was not in every case to be regarded as having interceded only for her partner’s share. For if they borrowed for that cause on account of which, if the creditor had not given the money, the woman would have suffered a greater loss—such as that a common tenement (insula) was not shored up, or that the common estate would be forfeited to the public—it is preferable that there be no place for the senatus consultum. But if the loaned money was received for some purchase, then she is seen to have made an intercession for a share, and therefore the creditor can demand only a part of the money from the woman; but if he should demand the whole, he is driven off by an exception as to the part (exceptio pro parte).

Dig. 16.1.18

Digest 16.1.18

Paulus 8 ad plaut.

Paul 8 to Plautius.

Idem et si pro debitore meo titius et mulier duo rei intercesserint.

The same also if, on behalf of my debtor, titius and a woman, two obligors, have interceded.

Dig. 16.1.19pr.

Digest 16.1.19pr.

Africanus 4 quaest.

Africanus 4 questions.

Tutor pupilli decesserat herede instituto titio: cum de adeunda hereditate dubitaret, quoniam male gesta tutela existimaretur, persuadente matre pupilli, ut suo periculo adiret, adiit stipulatusque de ea est indemnem se eo nomine praestari. si ex ea causa titius pupillo aliquid praestitisset isque matrem conveniret, negavit exceptioni senatus consulti locum esse, quando vix sit, ut aliqua apud eundem pro eo ipso intercessisse intellegi possit.

The tutor of the ward had died, with Titius instituted as heir: when he was doubting about entering upon the inheritance, since the guardianship was thought to have been ill-conducted, the mother of the ward persuading him to enter at his own peril, he entered and stipulated as to it that he be indemnified under that head. If from that cause Titius had paid something to the ward and were to proceed against the mother, he denied that there was room for the exception of the senatus consultum, since it is scarcely the case that it can be understood that any intercession had been made with the same party on behalf of that very person.

Dig. 16.1.19.1

Digest 16.1.19.1

Africanus 4 quaest.

Africanus 4 questions.

Nec dissimilem huic propositioni ex facto agitatam. cum quidam vir praetorius decessisset duobus filiis superstitibus, quorum alter impubes esset et alter legitimus tutor fratri esset et eum paterna hereditate abstinere vellet, mandatu uxoris defuncti, quae mater pupillo esset, abstento pupillo solum se hereditati miscuisse: ubi similiter se respondisse iulianus ait, si ex ea causa agente pupillo damnum eo nomine passus esset, non impediri eum senatus consulto, quo minus a muliere rem servaret.

Nor [was there] a controversy stirred from a fact dissimilar to this proposition: when a certain man of praetorian rank had died with two sons surviving, of whom one was underage and the other was the lawful tutor to his brother and wished that he abstain from the paternal inheritance, at the mandate of the deceased’s wife, who was the mother to the pupil, with the pupil abstained he alone had mixed himself with the inheritance; in which case Julian says that he answered similarly, that, if from that cause, with the pupil acting, he had suffered loss on that account, he was not hindered by the senatus consultum from recovering the matter from the woman.

Dig. 16.1.19.2

Digest 16.1.19.2

Africanus 4 quaest.

Africanus 4 Questions.

In proposita specie et illud tractandum est, an is, qui mandato mulieris adierit, si damnum ob id patiatur, quod debitores hereditarii solvendo non fuerint, senatus consulto locus sit, quasi quodammodo eorum obligationes mulier susceperit. magis autem est, ut ne ob hanc quidem causam senatus consultum locum habeat, quando non ea mente fuerit, ut pro his intercederet, sed tutoris adversus pupillum et ceteros forte creditores indemnem heredem praestaret.

In the proposed case this too must be examined, whether he who has entered upon the inheritance at the woman’s mandate, if he suffers loss on that account because the hereditary debtors were not solvent, has room for the senatorial decree, as though in a certain way the woman had undertaken their obligations. Rather, the better view is that not even for this cause does the senatorial decree have place, since she was not of the mind to intercede on their behalf, but to provide the heir held harmless with respect to the tutor’s claim against the ward and perhaps other creditors.

Dig. 16.1.19.3

Digest 16.1.19.3

Africanus 4 quaest.

Africanus 4 questions.

Denique si ponamus mulierem in emptionem hereditatis eo nomine damnum pati, quod debitores hereditarii solvendo non sint, nulla puto dubitatio erit, quin senatus consulto locus non sit, etiamsi maxime creditoribus aliquantum praestiterit.

Finally, if we suppose a woman, in the purchase of an inheritance, to suffer loss on this account, that the hereditary debtors are not solvent, I think there will be no doubt that the senatus consultum does not apply, even if she has to the utmost advanced some amount to the creditors.

Dig. 16.1.19.4

Digest 16.1.19.4

Africanus 4 quaest.

Africanus 4 Questions.

Quid ergo si, cum propterea de adeunda hereditate dubitaret titius, quod parum idonea nomina debitorum viderentur, mulier hoc ipsum repromisit, ut, quanto minus a quoquo eorum servari posset, ipsa praestaret? prope est, ut sit intercessio.

What then if, since for that reason Titius was hesitating about entering upon the inheritance, because the debtor notes (nomina) seemed scarcely adequate, the woman promised anew this very thing: that, to the extent that less could be satisfied by any one of them, she herself would make it good? It is close to being an intercession (a suretyship).

Dig. 16.1.19.5

Digest 16.1.19.5

Africanus 4 quaest.

Africanus 4 questions.

Cum haberes titium debitorem et pro eo mulier intercedere vellet nec tu mulieris nomen propter senatus consultum sequereris, petit a me mulier mutuam pecuniam solutura tibi et stipulanti mihi promisit ignoranti, in quam rem mutuaretur atque ita numerare me tibi iussit: deinde ego, quia ad manum nummos non habebam, stipulanti tibi promisi: quaesitum est, si eam pecuniam a muliere petam, an exceptio senatus consulti ei prosit. respondit videndum, ne non sine ratione dicatur eius loco, qui pro muliere fideiusserit, haberi me debere, ut quemadmodum illi, quamvis ignoraverit mulierem intercedere, exceptio adversus creditorem detur, ne in mulierem mandati actio competat, ita mihi quoque adversus te utilis exceptio detur mihique in mulierem actio denegetur, quando haec actio periculo mulieris futura sit. et haec paulo expeditius dicenda, si prius, quam ego tibi pecuniam solverim, compererim eam intercessisse: ceterum si ante solverim, videndum, utrumne nihilo minus mulieri quidem exceptio adversus me dari debeat et ego tibi condicere pecuniam possim, an vero perinde habendum sit, ac si initio ego pecuniam mulieri credidissem ac rursus tu mihi in creditum isses.

When you had Titius as a debtor and a woman wished to intercede on his behalf, and you did not follow the woman’s name because of the senatus consultum, the woman asked from me a loan of money to pay you, and, I being ignorant for what purpose she was borrowing, she promised to me as stipulator and thus ordered me to count out the money to you: then I, because I did not have cash at hand, promised to you as stipulator. The question was raised, if I demand that money from the woman, whether the exceptio of the senatus consultum would benefit her. He answered: it must be considered whether it is not without reason said that I ought to be held in the position of one who has stood surety for a woman, so that just as to him, although he was unaware that the woman was interceding, an exception is given against the creditor, lest an action on mandate lie against the woman, so also to me a useful exception should be given against you and an action against the woman be denied to me, since this action would be to the woman’s peril. And this is to be said somewhat more readily if, before I have paid you the money, I have discovered that she interceded: but if I have paid beforehand, it must be considered whether nonetheless an exception ought indeed to be given to the woman against me and I can bring a condictio for the money against you, or truly it is to be regarded just as if at the beginning I had lent the money to the woman and in turn you had gone into credit with me.

quod quidem magis dicendum existimavit, ut sic senatus consulto locus non sit: sicuti et cum debitorem suum mulier deleget, intercessioni locus non sit. quae postea non recte comparari ait, quando delegatione debitoris facta mulier non obligetur, at in proposito alienam obligationem in se transtulerit, quod certe senatus fieri noluerit.

he indeed thought it should rather be said, that thus there be no place for the senatorial decree: just as also when a woman delegates her debtor, there is no place for intercession. which he afterward says is not rightly comparable, since, when a delegation of the debtor has been made, the woman is not obligated; but in the present case she has transferred another’s obligation onto herself, which assuredly the senate did not wish to be done.

Dig. 16.1.20

Digest 16.1.20

Africanus 8 quaest.

Africanus 8 Questions.

Si pro uno reo intercessit mulier, adversus utrumque restituitur actio creditori.

If a woman interceded for one defendant, the action is restored to the creditor against both.

Dig. 16.1.21pr.

Digest 16.1.21, beginning.

Callistratus 3 inst.

Callistratus book 3 of the Institutes.

Si pro aliquo mulier intercesserit, sed in rem eius quod acceptum est versaretur, exceptio senatus consulti locum non habet, quia non fit pauperior.

If a woman has interceded on behalf of someone, but what was received was applied to her estate, the exception of the senatorial decree has no place, because she does not become poorer.

Dig. 16.1.21.1

Digest 16.1.21.1

Callistratus 3 inst.

Callistratus 3 Institutes.

Item si quid liberaliter fecerit, veluti ne iudicatus pater eius propter solutionem vexetur, non erit tuta senatus consulto: oneribus enim earum senatus succurrit.

Likewise, if he has done anything gratuitously, for example, so that his father, a judgment-debtor, not be harassed on account of the payment, it will not be protected by the senatorial decree: for the senate provides relief from their burdens.

Dig. 16.1.22

Digest 16.1.22

Paulus 6 reg.

Paulus book 6 of the Rules.

Si mulieri dederim pecuniam, ut eam creditori meo solvat vel expromittat, si ea expromiserit, locum non esse senatus consulto pomponius scribit, quia mandati actione obligata in rem suam videtur obligari.

If I have given money to a woman, so that she pay it to my creditor or undertake an expromission, if she has expromised, Pomponius writes that the senatorial decree does not have place, because, being obligated by the action of mandate, she seems to be obligated in her own interest.

Dig. 16.1.23

Digest 16.1.23

Paulus l.S. ad sc velle.

Paulus, in the single book on the Velleian senatus consultum.

Si mulier in iure interrogata responderit se heredem esse, si sciens se heredem non esse responderit, minime intercessisse videri, quia decepit: quod si existimavit se heredem et eo nomine decepta responderit in eam actionem quidem dari plerique existimaverunt, sed exceptione senatus adiuvari.

If a woman, when questioned in court, has answered that she is heir—if she answered knowing that she is not heir, she is deemed by no means to have interceded, because she deceived; but if she thought herself to be heir and under that designation, being deceived, answered, many have considered that an action should indeed be granted against her, but that she is aided by the exception of the Senate.

Dig. 16.1.24pr.

Digest 16.1.24pr.

Paulus l.S. de intercess. femina

Paul in the single book On the Intercession of Women

Debitrix mulier a creditore delegata pro eo cui delegata est promisit: non utetur exceptione.

A woman debtor, delegated by the creditor, promised on behalf of him to whom she was delegated: she will not use the exception.

Dig. 16.1.24.1

Digest 16.1.24.1

Paulus l.S. de intercess. femina

Paulus in the single book On the Intercession of a Woman

Sed si pecuniam promisit, ne delegetur, intercessisse videtur.

But if she has promised money, in order that a delegation not be made, she is deemed to have interceded.

Dig. 16.1.24.2

Digest 16.1.24.2

Paulus l.S. de intercess. femina

Paulus in the Single Book on a Woman’s Intercession

Si senatus consulti beneficium intervenit, utrum statim cum mulier intercesserit actio in priorem debitorem competit, an si mulier solutum condicat? puto statim, et non exspectandam solutionem.

If the benefit of the senatus-consultum intervenes, does an action at once lie against the prior debtor when a woman has interceded, or only if the woman brings a condiction for what has been paid? I think immediately, and that payment is not to be awaited.

Dig. 16.1.24.3

Digest 16.1.24.3

Paulus l.S. de intercess. femina

Paulus in the single book on a woman's intercession

Si pro eo, qui temporali actione teneretur, mulier intercesserit, temporalis actio restituetur, sic tamen, ut ex praecedenti causa continua tempora numerarentur post restitutionem, quamvis statim atque intercessit mulier competierat.

If, on behalf of one who was held by a temporal action, a woman has interceded, the temporal action will be restored; yet in such a way that, from the preceding cause, the continuous periods are reckoned after the restitution, although it had become available immediately when the woman interceded.

Dig. 16.1.25pr.

Digest 16.1.25pr.

Modestinus l.S. de heuremat.

Modestinus in the single book on finds.

Si domina servo suo credi iusserit, actione honoraria tenebitur.

If a mistress has ordered that credit be given to her slave, she will be held liable by an honorary action.

Dig. 16.1.25.1

Digest 16.1.25.1

Modestinus l.S. de heuremat.

Modestinus in the single book On the Heurema.

Quod si pro eo fideiusserit, exceptione senatus consulti velleiani iudicio conventa adversus creditorem tueri se poterit, nisi pro suo negotio hoc fecerit.

But if she has stood surety for him, when convened by suit she will be able to defend herself against the creditor by the exception of the Velleian senatus consultum, unless she did this for her own business.

Dig. 16.1.26

Digest 16.1.26

Ulpianus 37 ad ed.

Ulpianus 37 to the edict

Si mulier intercedendi animo servum alienum suum esse responderit, quasi intercesserit auxilio senatus consulti utetur. plane si pro bona fide serviente sibi responderit, non videtur intercessisse.

If a woman, with an intention of interceding, has responded that another’s slave is her own, she will use the aid of the senatus consultum as though she had interceded. Plainly, if she has responded that he was serving her in good faith, she is not considered to have interceded.

Dig. 16.1.27pr.

Digest 16.1.27pr.

Papinianus 3 resp.

Papinianus 3 Responses.

Bona fide personam mulieris in contrahendo secutus ob ea, quae inter virum et uxorem accepta pecunia gesta sunt, exceptione senatus consulti non summovetur.

A person who, in good faith, followed the woman’s persona in contracting is not barred by the exception of the Senate’s decree on account of those matters which were transacted between husband and wife upon money being received.

Dig. 16.1.27.1

Digest 16.1.27.1

Papinianus 3 resp.

Papinian, 3 Responses

Cum servi ad negotiationem praepositi cum alio contrahentes personam mulieris ut idoneae sequuntur, exceptione senatus consulti dominum summovet: nec videtur deterior causa domini per servum fieri, sed nihil esse domino quaesitum, non magis, quam si litigiosum praedium servus aut liberum hominem emerit.

When slaves appointed to a business, contracting together with another, assume the persona of a woman as an idonea, the exceptio of the senatus consultum removes the master: nor does the master’s position seem to be made worse through the slave, but rather that nothing has been acquired for the master—no more than if the slave had bought a litigious estate or a free man.

Dig. 16.1.27.2

Digest 16.1.27.2

Papinianus 3 resp.

Papinian 3 Responses.

Uxor debitricem suam viro delegavit, ut vir creditori eius pecuniam solveret: si fidem suam pro ea quam delegavit apud virum obligaverit, locum exceptio senatus consulti non habebit, quia mulier suum negotium gessit.

A wife delegated her (female) debtor to her husband, so that the husband might pay her creditor the money: if she has bound her own credit with her husband on behalf of the one whom she delegated, the exception of the senatus consultum will have no place, because the woman managed her own business.

Dig. 16.1.28pr.

Digest 16.1.28pr.

Scaevola 1 resp.

Scaevola 1 response.

Seia mancipia emit et mutuam pecuniam accepit sub fideiussore marito eamque solvit venditori: postea maritus decedens non solvendo in fraudem creditoris cavit testamento se eam pecuniam universam debere: quaeritur, an intercessisse mulier videretur. respondi secundum ea quae proponerentur non intercessisse.

Seia purchased slaves and received a mutuum (loan) with her husband as surety, and she paid it to the seller: afterwards the husband, dying insolvent, in fraud of the creditor provided in his testament that he owed that money in its entirety: it is asked whether the woman would seem to have interceded. I replied that, according to the matters set forth, she had not interceded.

Dig. 16.1.28.1

Digest 16.1.28.1

Scaevola 1 resp.

Scaevola 1 response.

Fundum uxoris suae maritus obligavit sempronio ob conductionem: mox mulier a numerio sua fide mutuam pecuniam acceptam sub obligatione eiusdem fundi solvit statim sempronio pro marito suo: quaesitum est, an adversus senatus consultum obligata sit. respondi, si numerius scisset eam intercedere, fore senatus consulto de quo quaereretur locum.

The husband pledged his wife’s estate to Sempronius on account of a lease: soon the woman, from Numerius, on her own credit, having received money as a loan under the obligation of the same estate, paid it immediately to Sempronius for her husband: it was asked whether she was obligated in contravention of the senatorial decree. I replied that, if Numerius knew that she was interceding, the senatorial decree about which inquiry is made would have place.

Dig. 16.1.29pr.

Digest 16.1.29, beginning.

Paulus 16 resp.

Paul 16 Responses

Quidam voluit heredibus lucii titii mutuam pecuniam dare et cum eis contrahere: sed quoniam facultates eorum suspectas habuit, magis voluit uxori testatoris dare pecuniam et ab ea pignus accipere: mulier eandem pecuniam dedit heredibus et ab his pignus accepit: quaero an intercessisse videatur et an pignora, quae ipsa accepit, teneantur creditori. paulus respondit, si creditor, cum contrahere vellet cum heredibus lucii titii, evitatis his magis mulierem ream elegit, et in ipsius persona senatus consulto, quod de intercessionibus factum est, locum esse et pignora ab ea data non teneri. eas autem res, quas mulier ab his, pro quibus intercedebat, pignori accepit, creditori mulieris obligatas non esse.

Someone wished to give money by way of a loan to the heirs of Lucius Titius and to contract with them; but since he regarded their means as suspect, he preferred to give the money to the testator’s wife and to receive a pledge from her; the woman gave the same money to the heirs and received a pledge from them. I ask whether she appears to have interceded, and whether the pledges which she herself received are held for the creditor. Paulus responded: if the creditor, when he wished to contract with the heirs of Lucius Titius, avoided them and instead chose the woman as the party liable, then, in her person, the senatorial decree that was made concerning intercessions has effect, and the pledges given by her are not binding. But the things which the woman received in pledge from those for whom she was interceding are not obligated to the woman’s creditor.

sed non sine ratione praetorem facturum, si non tantum in persona subducta muliere in principales debitores dederit actionem, sed etiam in res, quae mulieri obligatae sunt.

but not without reason would the praetor act, if he should grant an action not only, the woman’s person being withdrawn, against the principal debtors, but also against the things which are obligated to the woman.

Dig. 16.1.29.1

Digest 16.1.29.1

Paulus 16 resp.

Paulus 16 responses.

Paulus respondit ea, quae in fraudem senatus consulti, quod de intercessione feminarum factum est, excogitata probari possunt, rata haberi non oportere.

Paulus replied that those things which can be shown to have been contrived in fraud of the senatus consultum that was enacted concerning the intercession of women ought not to be held valid.

Dig. 16.1.30pr.

Digest 16.1.30pr.

Paulus 2 sent.

Paulus Book 2 of the Sentences.

Si decipiendi animo vel cum sciret se non teneri mulier pro aliquo intercesserit, exceptio ei senatus consulti non datur: actionem enim, quae in dolum mulieris competit, amplissimus ordo non excludit.

If, with intent to deceive, or when she knew herself not to be bound, a woman has interceded on behalf of someone, the exception of the senatus consultum is not granted to her: for the most august order does not exclude the action that lies for the woman’s dolus.

Dig. 16.1.30.1

Digest 16.1.30.1

Paulus 2 sent.

Paulus Sentences 2.

Procurator si mandatu mulieris pro alio intercesserit, exceptione senatus consulti velleiani adiuvatur, ne alias actio intercidat.

If a procurator, by the mandate of a woman, has interceded on behalf of another, he is aided by the exception of the Velleian senatorial decree, lest otherwise the action be cut off.

Dig. 16.1.31

Digest 16.1.31

Paulus 1 ad ner.

Paulus 1 on Neratianus.

Paulus: si mulier quod ex intercessione solvit nolit repetere, sed mandati agere et cavere velit de indemnitate reo, audienda est.

Paulus: if a woman, for what she has paid from intercession, does not wish to recover it, but wishes to sue on mandate and to give a caution concerning indemnity to the defendant, she is to be heard.

Dig. 16.1.32pr.

Digest 16.1.32, beginning.

Pomponius 1 sen. consult.

Pomponius 1 On the senatus consults.

Si mulier hereditatem alicuius adeat, ut aes alienum eius suscipiat, vix est, ut succurri ei debeat, nisi si fraude creditorum id conceptum sit: nec enim loco minoris viginti quinque annis circumscripti per omnia habenda est mulier.

If a woman enters upon someone’s inheritance, in order to assume his debt, scarcely ought she to be succored, unless this was contrived by the fraud of the creditors; for a woman is not to be regarded in every respect as in the position of one under twenty-five years who has been overreached.

Dig. 16.1.32.1

Digest 16.1.32.1

Pomponius 1 sen. consult.

Pomponius 1 senatus-consults.

Si mulier rem a se pignori datam per intercessionem recipere velit, fructus etiam liberos recipit et, si res deterior facta fuerit, eo nomine magis aestimetur. sed si creditor, qui pignus per intercessionem acceperit, hoc alii vendidit, vera est eorum opinio, qui petitionem dandam ei putant et adversus bonae fidei emptorem, ne melioris condicionis emptor sit, quam fuerit venditor.

If a woman wishes to recover a thing given by herself in pledge by way of intercession, she also recovers the fruits free and clear, and, if the thing has been made worse, let it on that account be assessed the more. But if the creditor, who received the pledge by intercession, has sold this to another, true is the opinion of those who think that an action should be granted to her even against a buyer in good faith, lest the buyer be in a better condition than the seller was.

Dig. 16.1.32.2

Digest 16.1.32.2

Pomponius 1 sen. consult.

Pomponius 1 senatorial decrees.

Item si mulier creditori viri fundum vendidit et tradidit ea condicione, ut emptor acceptam pecuniam viro referret, et hunc fundum vindicat, exceptio quidem opponitur ei de re empta et tradita, sed replicabitur a muliere: " aut si ea venditio contra senatus consultum facta sit", et hoc procedit, sive ipse creditor emerit sive interposuerit alium, quo mulier ea ratione careat re sua. idem est et si non pro viro, sed pro alio debitore rem suam tradidit.

Likewise, if a woman sold and delivered a farm to her husband’s creditor on this condition, that the purchaser should carry back the money received to the husband, and she vindicates this farm, an exception is indeed set up against her on the ground of a thing bought and delivered; but a replication will be made by the woman: “or if that sale was made contrary to the senatorial decree”; and this prevails, whether the creditor himself bought or interposed another, whereby by that device the woman is deprived of her own property. The same holds also if she delivered her property not for her husband, but for another debtor.

Dig. 16.1.32.3

Digest 16.1.32.3

Pomponius 1 sen. consult.

Pomponius 1 senatorial decrees.

Si mulier, ne ipsa intercederet, alii mandaret ut id faceret, an in huius persona locus huic senatus consulto sit, qui rogatu mulieris id faceret? totus enim sermo senatus consulti ad petitionem non dandam adversus ipsam mulierem spectat. et puto rem ita esse distinguendam, ut, si quidem creditor, cui me obligavi mandante muliere, hoc in fraudem senatus consulti egisset, ne ipsa interveniret contra senatus consultum, daret autem alium, excludendum eum exceptione fraudis senatus consulti factae: si vero is ignorasset, ego autem scissem, tunc mandati me agentem cum muliere excludendum esse, me autem creditori teneri.

If a woman, in order that she herself might not intercede, were to mandate another to do it, is there, in the person of this other, room for this senatus consultum, he who would do it at the woman’s request? For the whole discourse of the senatus consultum looks to the action not being granted against the woman herself. And I think the matter should be distinguished thus: if indeed the creditor, to whom I bound myself at the woman’s mandating, had done this in fraud of the senatus consultum, so that she herself would not intervene contrary to the senatus consultum, but would put forward another, he must be excluded by the exception of fraud of the senatus consultum committed; but if he had been ignorant, and I had known, then I, suing the woman on mandate, must be excluded, but I am bound to the creditor.

Dig. 16.1.32.4

Digest 16.1.32.4

Pomponius 1 sen. consult.

Pomponius 1 on the senatorial decree.

Si mulier pro eo, pro quo intercesserit, iudicium parata sit accipere, ut non in veterem debitorem actio detur: quoniam senatus consulti exceptionem opponere potest, cavere debebit exceptione se non usuram et sic ad iudicem ire.

If a woman, on behalf of the person for whom she has interceded, is ready to accept a judgment, so that an action may not be granted against the original debtor: since she can oppose the exception of the senatus consultum, she ought to give security that she will not make use of the exception, and so go to the judge.

Dig. 16.1.32.5

Digest 16.1.32.5

Pomponius 1 sen. consult.

Pomponius 1 on senatorial decrees.

Intercedere mulierem intellegendum est etiam pro eo, qui obligari non possit, veluti si pro servo alieno intercedit: sed rescissa intercessione in dominum restituenda est actio.

It is to be understood that a woman may intercede even on behalf of one who cannot be obligated, as, for example, if she intercedes for another’s slave; but, the intercession having been rescinded, the action is to be restored against the master.

Dig. 16.2.0. De compensationibus.

Digest 16.2.0. On Set-offs.

Dig. 16.2.1

Digest 16.2.1

Modestinus 6 pand.

Modestinus 6 pandects.

Compensatio est debiti et crediti inter se contributio.

Compensation is the mutual contribution of debit and credit to one another.

Dig. 16.2.2

Digest 16.2.2

Iulianus 90 Dig.

Julian 90 Digest.

Unusquisque creditorem suum eundemque debitorem petentem summovet, si paratus est compensare.

Each person may ward off his creditor—who is likewise his debtor—when that creditor brings suit, if he is prepared to compensate (set off).

Dig. 16.2.3

Digest 16.2.3

Pomponius 25 ad sab.

Pomponius 25 on Sabinus.

Ideo compensatio necessaria est, quia interest nostra potius non solvere quam solutum repetere.

Therefore set-off is necessary, because it is in our interest rather not to pay than to recover what has been paid.

Dig. 16.2.4

Digest 16.2.4

Paulus 3 ad sab.

Paulus 3 on Sabinus.

Verum est, quod et neratio placebat et pomponius ait, ipso iure eo minus fideiussorem ex omni contractu debere, quod ex compensatione reus retinere potest: sicut enim, cum totum peto a reo, male peto, ita et fideiussor non tenetur ipso iure in maiorem quantitatem quam reus condemnari potest.

It is true, as both Neratius approved and Pomponius says, that by the law itself the surety owes so much the less under any contract as the defendant can retain by compensation (set‑off): for just as, when I demand the whole from the defendant, I demand improperly, so too the surety is not held by the law itself for a greater amount than the defendant can be condemned.

Dig. 16.2.5

Digest 16.2.5

Gaius 9 ad ed. provinc.

Gaius 9 on the Provincial Edict.

Si quid a fideiussore petetur, aequissimum est eligere fideiussorem, quod ipsi an quod reo debetur, compensare malit: sed et si utrumque velit compensare, audiendus est.

If anything is sought from the surety, it is most equitable to allow the surety to choose whether he prefers to compensate (set off) what is owed to himself or what is owed to the principal (defendant); but even if he wishes to compensate (set off) both, he is to be heard.

Dig. 16.2.6

Digest 16.2.6

Ulpianus 30 ad sab.

Ulpian, 30 on Sabinus.

Etiam quod natura debetur, venit in compensationem.

Even what is owed by nature comes into compensation.

Dig. 16.2.7pr.

Digest 16.2.7pr.

Ulpianus 28 ad ed.

Ulpian, 28 on the Edict.

Quod in diem debetur, non compensabitur, antequam dies venit, quamquam dari oporteat.

What is owed for a set day will not be set off before the day comes, although it ought to be given.

Dig. 16.2.7.1

Digest 16.2.7.1

Ulpianus 28 ad ed.

Ulpian, 28 on the Edict.

Si rationem compensationis iudex non habuerit, salva manet petitio: nec enim rei iudicatae exceptio obici potest. aliud dicam, si reprobavit pensationem quasi non existente debito: tunc enim rei iudicatae mihi nocebit exceptio.

If the judge has not had regard to the rationale of compensation (set-off), the petition remains safe; for the exception of res judicata cannot be raised. aliud dicam, if he rejected the pensation (as though the debt did not exist): then indeed the exception of res judicata will harm me.

Dig. 16.2.8

Digest 16.2.8

Gaius 9 ad ed. provinc.

Gaius 9 on the provincial edict.

In compensationem etiam id deducitur, quo nomine cum actore lis contestata est, ne diligentior quisque deterioris condicionis habeatur, si compensatio ei denegetur.

Into compensation there is also deducted that head under which the suit has been joined with the plaintiff, lest anyone more diligent be held in a worse condition, if compensation be denied to him.

Dig. 16.2.9pr.

Digest 16.2.9, preface.

Paulus 32 ad ed.

Paul 32 on the Edict.

Si cum filio familias aut servo contracta sit societas et agat dominus vel pater, solidum per compensationem servamus, quamvis, si ageremus, dumtaxat de peculio praestaretur.

If a partnership has been contracted with a son-in-power or a slave, and the master or father brings the action, we preserve the solidum by compensation (set-off), although, if we were bringing the action, only what is out of the peculium would be recoverable.

Dig. 16.2.9.1

Digest 16.2.9.1

Paulus 32 ad ed.

Paulus 32 to the edict.

Sed si cum filio familias agatur, an quae patri debeantur filius compensare possit, quaeritur: et magis est admittendum, quia unus contractus est, sed cum condicione, ut caveat patrem suum ratum habiturum, id est non exacturum quod is compensaverit.

But if one deals with a son-in-power, the question arises whether the son can compensate by set-off what is owed to the father; and it is rather to be admitted, because it is one contract, but with the condition that he give security that his father will hold it ratified—that is, that he will not exact what he has compensated.

Dig. 16.2.10pr.

Digest 16.2.10 pr.

Ulpianus 63 ad ed.

Ulpian 63 On the Edict.

Si ambo socii parem neglegentiam societati adhibuimus, dicendum est desinere nos invicem esse obligatos ipso iure compensatione neglegentiae facta. simili modo probatur, si alter ex re communi aliquid perceperit, alter tantam neglegentiam exhibuerit, quae eadem quantitate aestimatur, compensationem factam videri et ipso iure invicem liberationem.

If both partners have applied equal negligence to the partnership, it must be said that we cease to be obligated to each other, by the law itself, compensation of the negligence having been made. In a similar way it is established that, if one has received something from the common property, and the other has exhibited such negligence as is valued in the same amount, compensation is deemed to have been made and, by the law itself, mutual release.

Dig. 16.2.10.1

Digest 16.2.10.1

Ulpianus 63 ad ed.

Ulpian book 63 on the Edict.

Si quis igitur compensare potens solverit, condicere poterit quasi indebito soluto.

If, therefore, someone able to set off has paid, he will be able to bring a condiction as though a non-debt had been paid.

Dig. 16.2.10.2

Digest 16.2.10.2

Ulpianus 63 ad ed.

Ulpian 63 on the Edict.

Quotiens ex maleficio oritur actio, ut puta ex causa furtiva ceterorumque maleficiorum, si de ea pecuniarie agitur, compensatio locum habet: idem est et si condicatur ex causa furtiva. sed et qui noxali iudicio convenitur, compensationem opponere potest.

Whenever an action arises from a delict, as, for instance, from a furtive (theft) cause and from other delicts, if the matter is pursued pecuniarily, compensation has a place: the same holds if a condiction is brought from a furtive cause. But even one who is sued by a noxal action can set up compensation in opposition.

Dig. 16.2.10.3

Digest 16.2.10.3

Ulpianus 63 ad ed.

Ulpian, 63 on the Edict.

In stipulationibus quoque quae instar actionum habent, id est praetoriis, compensatio locum habet, et secundum iulianum tam in ipsa stipulatione quam in ex stipulatu actione poterit obici compensatio.

In stipulations also which have the standing of actions, that is, the praetorian ones, compensation has a place; and, according to Julian, compensation can be pleaded both in the stipulation itself and in the action ex stipulatu.

Dig. 16.2.11

Digest 16.2.11

Ulpianus 32 ad ed.

Ulpian, 32 on the Edict.

Cum alter alteri pecuniam sine usuris, alter usurariam debet, constitutum est a divo severo concurrentis apud utrumque quantitatis usuras non esse praestandas.

When one owes another money without usury, and the other owes usurious (interest-bearing) money, it has been constituted by the deified Severus that interest is not to be rendered on the amount concurrent with both.

Dig. 16.2.12

Digest 16.2.12

Ulpianus 64 ad ed.

Ulpian 64 on the Edict.

Idem iuris est non solum in privatis, verum etiam in causa fisci constitutum. sed et si invicem sit usuraria pecunia, diversae tamen sint usurae, compensatio nihilo minus locum habet eius quod invicem debetur.

The same rule of law has been established not only in private matters, but also in the case of the fisc. But even if on both sides the money is usurious, although the interests are different, compensation (set-off) nonetheless has place for that which is mutually owed.

Dig. 16.2.13

Digest 16.2.13

Ulpianus 66 ad ed.

Ulpian 66 on the Edict.

Quod labeo ait, non est sine ratione, ut, si cui petitioni specialiter destinata est compensatio, in ceteris non obiciatur.

What labeo says is not without reason: that, if a set-off has been specially designated for some particular claim, it is not to be pleaded in the others.

Dig. 16.2.14

Digest 16.2.14

Iavolenus 15 ex cass.

Javolenus 15 from Cassius.

Quaecumque per exceptionem peremi possunt, in compensationem non veniunt.

Whatever can be extinguished by an exception does not come into compensation.

Dig. 16.2.15

Digest 16.2.15

Iavolenus 2 epist.

Iavolenus Epistles, Book 2.

Pecuniam certo loco titio dari stipulatus sum: is petit a me quam ei debeo pecuniam: quaero, an hoc quoque pensandum sit, quanti mea interfuit certo loco dari. respondit: si titius petit, eam quoque pecuniam, quam certo loco promisit, in compensationem deduci oportet, sed cum sua causa, id est ut ratio habeatur, quanti titii interfuerit eo loco quo convenerit pecuniam dari.

I stipulated that money be given to Titius at a fixed place: he seeks from me the money which I owe him. I ask whether this also should be weighed, how much it was in my interest that it be given at the fixed place. He answered: if Titius sues, that money also which he promised at a fixed place ought to be deducted in compensation, but with its own cause, that is, that account be had of how much it was in Titius’s interest that the money be given in the place agreed.

Dig. 16.2.16pr.

Digest 16.2.16pr.

Papinianus 3 quaest.

Papinian, 3 Questions.

Cum militi castrensium bonorum alius, ceterorum alius heres exstitit et debitor alteri heredum obligatus vult compensare quod ab alio debetur, non audietur.

When, for a soldier, one heir has arisen of the camp-goods and another of the rest, and a debtor obligated to one of the heirs wishes to compensate what is owed by the other, he will not be heard.

Dig. 16.2.16.1

Digest 16.2.16.1

Papinianus 3 quaest.

Papinianus 3 Questions.

Cum intra diem ad iudicati exsecutionem datum iudicatus titio agit cum eodem titio, qui et ipse pridem illi iudicatus est, compensatio admittetur: aliud est enim diem obligationis non venisse, aliud humanitatis gratia tempus indulgeri solutionis.

When, within the day granted for the execution of the adjudged claim, the person adjudged to Titius brings an action against that same Titius, who likewise had formerly been adjudged to him, set-off (compensation) will be admitted: for it is one thing that the day of the obligation has not come, another that, by grace of humanity, time is indulged for payment.

Dig. 16.2.17

Digest 16.2.17

Papinianus 1 resp.

Papinian Book 1 of Responses.

Ideo condemnatus, quod artiorem annonam aedilitatis tempore praebuit, frumentariae pecuniae debitor non videbitur, et ideo compensationem habebit.

Therefore, a man condemned because he provided a dearer annona during his aedileship will not be seen as a debtor of the grain-money, and therefore he will have compensation (set-off).

Dig. 16.2.18pr.

Digest 16.2.18, preface.

Papinianus 3 resp.

Papinian 3 responses.

In rem suam procurator datus post litis contestationem, si vice mutua conveniatur, aequitate compensationis utetur.

A procurator appointed in rem suam, after the joinder of issue, if he is convened in reciprocal capacity, will make use of the equity of compensation.

Dig. 16.2.18.1

Digest 16.2.18.1

Papinianus 3 resp.

Papinian 3 Responses

Creditor compensare non cogitur quod alii quam debitori suo debet, quamvis creditor eius pro eo, qui convenitur ob debitum proprium, velit compensare.

A creditor is not compelled to set off what he owes to someone other than his own debtor, although that person’s creditor may wish to set off on behalf of the one who is sued for his own debt.

Dig. 16.2.19

Digest 16.2.19

Papinianus 11 resp.

Papinian, 11 responses.

Debitor pecuniam publicam servo publico citra voluntatem eorum solvit, quibus debitum recte solvi potuit: obligatio pristina manebit, sed dabitur ei compensatio peculii fini, quod servus publicus habebit.

If a debtor pays public funds to a public slave without the will of those to whom the debt could rightly be paid, the original obligation will remain; but he will be granted a set-off up to the limit of the peculium that the public slave will have.

Dig. 16.2.20

Digest 16.2.20

Papinianus 13 resp.

Papinian 13 responses.

Ob negotium copiarum expeditionis tempore mandatum curatorem condemnatum pecuniam iure compensationis retinere non placuit, quoniam ea non compensantur.

On account of the business of supplies, mandated in time of an expedition, it was not approved for the condemned curator to retain money by the right of compensation, since such things are not subject to compensation.

Dig. 16.2.21

Digest 16.2.21

Paulus 1 quaest.

Paulus 1 Questions.

Posteaquam placuit inter omnes id quod invicem debetur ipso iure compensari, si procurator absentis conveniatur, non debebit de rato cavere, quia nihil compensat, sed ab initio minus ab eo petitur.

After it has been agreed among all that what is mutually owed is set off by the law itself, if a procurator of an absent person is convened, he ought not to give security de rato, because he compensates nothing, but from the beginning less is demanded from him.

Dig. 16.2.22

Digest 16.2.22

Scaevola 2 quaest.

Scaevola 2 Questions.

Si debeas decem aut hominem, utrum adversarius volet, ita compensatio huius debiti admittitur, si adversarius palam dixisset, utrum voluisset.

If you owe ten or a slave, whichever the adversary will choose, thus compensation of this debt is admitted, if the adversary had openly declared which he wished.

Dig. 16.2.23

Digest 16.2.23

Paulus 9 resp.

Paulus 9 Responses.

Id quod pupillorum nomine debetur si tutor petat, non posse compensationem obici eius pecuniae, quam ipse tutor suo nomine adversario debet.

As to that which is owed in the name of wards, if the tutor sues for it, compensation (set‑off) cannot be objected on account of the money which the tutor himself, in his own name, owes to the adversary.

Dig. 16.2.24

Digest 16.2.24

Paulus 3 decr.

Paulus book 3 of Decrees.

Iussit imperator audiri adprobantem sibi a fisco deberi, quod ipse convenitur.

The emperor ordered that he be heard who affirms that there is owed to him by the fisc that for which he himself is being sued.

Dig. 16.3.0. Depositi vel contra.

Digest 16.3.0. Deposit, or the contrary action.

Dig. 16.3.1pr.

Digest 16.3.1pr.

Ulpianus 30 ad ed.

Ulpian, 30 on the Edict.

Depositum est, quod custodiendum alicui datum est, dictum ex eo quod ponitur: praepositio enim de auget depositum, ut ostendat totum fidei eius commissum, quod ad custodiam rei pertinet.

A deposit is that which has been given to someone to be guarded, so called from the fact that it is set down; for the preposition de augments deposit, to show that the whole is committed to his faith, in what pertains to the custody of the thing.

Dig. 16.3.1.1

Digest 16.3.1.1

Ulpianus 30 ad ed.

Ulpian, 30 on the edict.

Praetor ait: " quod neque tumultus neque incendii neque ruinae neque naufragii causa depositum sit, in simplum, earum autem rerum, quae supra comprehensae sunt, in ipsum in duplum, in heredem eius, quod dolo malo eius factum esse dicetur qui mortuus sit, in simplum, quod ipsius, in duplum iudicium dabo. "

The Praetor says: " that which shall not have been deposited by reason of tumult, or fire, or ruin, or shipwreck, for the single; but for those matters which have been included above, against the person himself for the double; against his heir, for what will be said to have been done by the fraud of him who has died, for the single; for what is his own (i.e., by the heir himself), for the double, I will grant an action. "

Dig. 16.3.1.2

Digest 16.3.1.2

Ulpianus 30 ad ed.

Ulpian, 30 on the Edict.

Merito has causas deponendi separavit praetor, quae continent fortuitam causam depositionis ex necessitate descendentem, non ex voluntate proficiscentem.

Rightly the praetor separated these causes of depositing, which contain a fortuitous cause of deposition descending from necessity, not proceeding from volition.

Dig. 16.3.1.3

Digest 16.3.1.3

Ulpianus 30 ad ed.

Ulpian 30 on the Edict.

Eum tamen deponere tumultus vel incendii vel ceterarum causarum gratia intellegendum est, qui nullam aliam causam deponendi habet quam imminens ex causis supra scriptis periculum.

Nevertheless, he is to be understood to deposit for the sake of tumult or of fire or of other causes, who has no other cause for depositing than the imminent peril arising from the causes written above.

Dig. 16.3.1.4

Digest 16.3.1.4

Ulpianus 30 ad ed.

Ulpian 30 on the Edict.

Haec autem separatio causarum iustam rationem habet: quippe cum quis fidem elegit nec depositum redditur, contentus esse debet simplo, cum vero extante necessitate deponat, crescit perfidiae crimen et publica utilitas coercenda est vindicandae rei publicae causa: est enim inutile in causis huiusmodi fidem frangere.

Moreover, this separation of cases has a just rationale: for when someone has chosen to rely on good faith and the deposit is not returned, he ought to be content with simple recovery; but when he deposits with necessity being evident, the crime of perfidy increases, and coercion is required in the public interest for the sake of vindicating the commonwealth; for it is disadvantageous in cases of this kind to break faith.

Dig. 16.3.1.5

Digest 16.3.1.5

Ulpianus 30 ad ed.

Ulpian 30 on the Edict.

Quae depositis rebus accedunt, non sunt deposita, ut puta si homo vestitus deponatur, vestis enim non est deposita: nec si equus cum capistro, nam solus equus depositus est.

Things which accede to things deposited are not themselves deposited; for instance, if a clothed person is deposited, the garment is not deposited: nor if a horse with a halter, for the horse alone is deposited.

Dig. 16.3.1.6

Digest 16.3.1.6

Ulpianus 30 ad ed.

Ulpian 30 on the Edict.

Si convenit, ut in deposito et culpa praestetur, rata est conventio: contractus enim legem ex conventione accipiunt.

If it is agreed that, in a deposit, fault also shall be warranted, the convention is valid: for contracts receive their law from convention.

Dig. 16.3.1.7

Digest 16.3.1.7

Ulpianus 30 ad ed.

Ulpian 30 on the Edict

Illud non probabis, dolum non esse praestandum si convenerit: nam haec conventio contra bonam fidem contraque bonos mores est et ideo nec sequenda est.

You will not approve this, that fraud need not be answered for if it was agreed: for this agreement is against good faith and against good morals, and therefore is not to be followed.

Dig. 16.3.1.8

Digest 16.3.1.8

Ulpianus 30 ad ed.

Ulpian 30 on the edict.

Si vestimenta servanda balneatori data perierunt, si quidem nullam mercedem servandorum vestimentorum accepit, depositi eum teneri et dolum dumtaxat praestare debere puto: quod si accepit, ex conducto.

If garments given to the bath attendant to be kept have perished, if indeed he received no fee for keeping the garments, I think he is liable by the action of deposit and ought to answer only for fraud; but if he received [a fee], then by the action ex conducto.

Dig. 16.3.1.9

Digest 16.3.1.9

Ulpianus 30 ad ed.

Ulpian 30 on the Edict.

Si quis servum custodiendum coniecerit forte in pistrinum, si quidem merces intervenit custodiae, puto esse actionem adversus pistrinarium ex conducto: si vero mercedem accipiebam ego pro hoc servo, quem in pistrinum accipiebat, ex locato me agere posse: quod si operae eius servi cum custodia pensabantur, quasi genus locati et conducti intervenit, sed quia pecunia non datur, praescriptis verbis datur actio: si vero nihil aliud quam cibaria praestabat nec de operis quicquam convenit, depositi actio est.

If someone has a slave, to be kept under custody, put by chance into a bakehouse, then, if indeed payment intervened for the custody, I think there is an action against the bakehouse-keeper ex conducto; but if I was receiving a fee for this slave, whom he was taking into the bakehouse, I can sue ex locato; but if the services of that slave were being set off against the custody, as it were a kind of locatio et conductio intervenes, yet because money is not given, an action praescriptis verbis is granted; but if in truth he furnished nothing other than rations and nothing was agreed concerning the works, there is an action depositi.

Dig. 16.3.1.10

Digest 16.3.1.10

Ulpianus 30 ad ed.

Ulpian, 30 on the Edict.

In conducto et locato et in negotio, ex quo diximus praescriptis verbis dandam actionem, et dolum et culpam praestabunt qui servum receperunt: at si cibaria tantum, dolum dumtaxat. sequemur tamen, ut pomponius ait, et quid habuerunt proscriptum aut quid convenerit, dummodo sciamus et si quid fuit proscriptum, dolum tamen eos praestaturos qui receperunt, qui solus in depositum venit.

In letting and hiring, and in the business from which we have said an action with prescribed words is to be given, those who have received a slave will answer for both fraud and fault; but if only provisions were [undertaken], then for fraud only. We shall, however, follow, as Pomponius says, both what they had posted and what was agreed, provided we understand that even if anything was posted, nevertheless those who received will be liable for fraud, which alone enters into a deposit.

Dig. 16.3.1.11

Digest 16.3.1.11

Ulpianus 30 ad ed.

Ulpian 30 on the Edict.

Si te rogavero, ut rem meam perferas ad titium, ut is eam servet, qua actione tecum experiri possum, apud pomponium quaeritur. et putat tecum mandati, cum eo vero, qui eas res receperit, depositi: si vero tuo nomine receperit, tu quidem mihi mandati teneris, ille tibi depositi, quam actionem mihi praestabis mandati iudicio conventus.

If I should ask you to carry my property to Titius, so that he may keep it, by what action can I proceed against you? The question is raised by Pomponius. And he thinks: against you, by an action on mandate; against the one who received those things, by an action on deposit. But if he received it in your name, you indeed are liable to me on mandate, he to you on deposit; and, when sued by the action on mandate, you will furnish me that action.

Dig. 16.3.1.12

Digest 16.3.1.12

Ulpianus 30 ad ed.

Ulpian, 30 on the edict.

Quod si rem tibi dedi, ut, si titius rem non recepisset, tu custodires, nec eam recepit, videndum est, utrum depositi tantum an et mandati actio sit. et pomponius dubitat: puto tamen mandati esse actionem, quia plenius fuit mandatum habens et custodiae legem.

But if I gave you a thing, on the understanding that, if Titius did not receive the thing, you should guard it, and he did not receive it, it must be considered whether there is only an action of deposit or also an action of mandate. And Pomponius is in doubt; I think, however, that the action is of mandate, because the mandate was fuller, having also a rule of custody.

Dig. 16.3.1.13

Digest 16.3.1.13

Ulpianus 30 ad ed.

Ulpian 30 on the Edict.

Idem pomponius quaerit, si tibi mandavero, ut rem ab aliquo meo nomine receptam custodias, idque feceris, mandati an depositi tenearis. et magis probat mandati esse actionem, quia hic est primus contractus.

Likewise Pomponius inquires, if I have commissioned you to keep safe a thing received from someone in my name, and you have done this, whether you are held under the action of mandate or of deposit. And he more approves that the action is of mandate, because here the first contract is the mandate.

Dig. 16.3.1.14

Digest 16.3.1.14

Ulpianus 30 ad ed.

Ulpian 30 on the edict.

Idem pomponius quaerit, si apud te volentem me deponere iusseris apud libertum tuum deponere, an possim tecum depositi experiri. et ait, si tuo nomine, hoc est quasi te custodituro, deposuissem, mihi tecum depositi esse actionem: si vero suaseris mihi, ut magis apud eum deponam, tecum nullam esse actionem, cum illo depositi actio est: nec mandati teneris, quia rem meam gessi. sed si mandasti mihi, ut periculo tuo apud eum deponam, cur non sit mandati actio, non video.

The same Pomponius asks: if, when I was willing to deposit with you, you ordered me to deposit with your freedman, whether I can proceed against you by the action of deposit. And he says: if I had deposited in your name, that is, as though you were to keep it, I have the action of deposit against you; but if you advised me to deposit rather with him, there is no action against you, since the action of deposit lies against him; nor are you bound under mandate, because I managed my own affair. But if you commissioned me to deposit with him at your risk, I do not see why there should not be an action of mandate.

plane si fideiussisti pro eo, labeo omnimodo fideiussorem teneri ait, non tantum si dolo fecit is qui depositum suscepit, sed et si non fecit, est tamen res apud eum. quid enim si fureret is, apud quem depositum sit, vel pupillus sit, vel neque heres neque bonorum possessor neque successor eius exstaret? tenebitur ergo, ut id praestet, quod depositi actione praestari solet.

Clearly, if you have stood surety for him, Labeo says the surety is in every way held liable—not only if the one who undertook the deposit acted with fraud, but even if he did not, yet the thing is with him. For what if the one with whom the deposit was made were insane, or were a pupil, or neither heir nor possessor of the goods nor his successor existed? He will therefore be held to render that which is wont to be rendered by the action of deposit.

Dig. 16.3.1.15

Digest 16.3.1.15

Ulpianus 30 ad ed.

Ulpian, 30 On the Edict.

An in pupillum, apud quem sine tutoris auctoritate depositum est, depositi actio detur, quaeritur. sed probari oportet, si apud doli mali iam capacem deposueris, agi posse, si dolum commisit: nam et in quantum locupletior factus est, datur actio in eum et si dolus non intervenit.

It is asked whether the action on deposit should be granted against a ward, with whom a deposit was made without the authority of his tutor. But it must be proved that, if you deposited with one already capable of dolus malus, an action can be brought if he has committed dolus; for also to the extent that he has been made wealthier, an action is given against him even if dolus has not intervened.

Dig. 16.3.1.16

Digest 16.3.1.16

Ulpianus 30 ad ed.

Ulpian 30 on the Edict.

Si res deposita deterior reddatur, quasi non reddita agi depositi potest: cum enim deterior redditur, potest dici dolo malo redditam non esse.

If the deposited thing is returned in a worse condition, the action of deposit can be brought as though it had not been returned: for when it is returned worse, it can be said, by malicious fraud, that it has not been returned.

Dig. 16.3.1.17

Digest 16.3.1.17

Ulpianus 30 ad ed.

Ulpian 30 on the Edict.

Si servus meus deposuerit, nihilo minus depositi habebo actionem.

If my slave has deposited, nonetheless I will have the action of deposit.

Dig. 16.3.1.18

Digest 16.3.1.18

Ulpianus 30 ad ed.

Ulpian 30 on the edict.

Si apud servum deposuero et cum manumisso agam, Marcellus ait nec tenere actionem, quamvis solemus dicere doli etiam in servitute commissi teneri quem debere, quia et delicta et noxae caput sequuntur: erit igitur ad alias actiones competentes decurrendum.

If I have deposited with a slave and proceed against him when manumitted, Marcellus says the action does not hold, although we are accustomed to say that one is also held for dolus (fraud) committed in servitude, since both delicts and noxae follow the person; therefore resort must be had to other competent actions.

Dig. 16.3.1.19

Digest 16.3.1.19

Ulpianus 30 ad ed.

Ulpian 30 on the Edict.

Haec actio bonorum possessoribus ceterisque ^ ^ successoribus ^ ^ et ei, cui ex trebelliano senatus consulto restituta est hereditas, competit.

This action lies for the estate-possessors and the other ^ ^ successors ^ ^, and for the one to whom, under the Trebellian senatus-consultum, the inheritance has been restored.

Dig. 16.3.1.20

Digest 16.3.1.20

Ulpianus 30 ad ed.

Ulpian, 30 on the Edict.

Non tantum praeteritus dolus in depositi actione veniet, sed etiam futurus, id est post litem contestatam.

Not only past fraud will come in within the action of deposit, but also future [fraud], that is, after the suit has been contested.

Dig. 16.3.1.21

Digest 16.3.1.21

Ulpianus 30 ad ed.

Ulpian 30 on the Edict.

Inde scribit neratius, si res deposita sine dolo malo amissa sit et post iudicium acceptum reciperaretur, nihilo minus recte ad restitutionem reum compelli nec debere absolvi, nisi restituat. idem neratius ait, quamvis tunc tecum depositi actum sit, cum restituendi facultatem non habeas horreis forte clusis, tamen si ante condemnationem restituendi facultatem habeas, condemnandum te nisi restituas, quia res apud te est: tunc enim quaerendum, an dolo malo feceris, cum rem non habes.

From there Neratius writes that, if the deposited thing was lost without malicious deceit and, after the acceptance of the judgment, were recovered, nonetheless the defendant is rightly compelled to restitution and ought not to be absolved unless he restores. The same Neratius says that, although an action on deposit has been brought against you at a time when you do not have the capacity to restore—perhaps because the granaries are shut—still, if before condemnation you have the capacity to restore, you must be condemned unless you restore, because the thing is with you: for then the question is whether you acted with malicious deceit, when you do not have the thing.

Dig. 16.3.1.22

Digest 16.3.1.22

Ulpianus 30 ad ed.

Ulpian, 30 on the Edict.

Est autem et apud iulianum libro tertio decimo digestorum scriptum eum qui rem deposuit statim posse depositi actione agere: hoc enim ipso dolo facere eum qui suscepit, quod reposcenti rem non reddat. Marcellus autem ait non semper videri posse dolo facere eum, qui reposcenti non reddat: quid enim si in provincia res sit vel in horreis, quorum aperiendorum condemnationis tempore non sit facultas ? vel condicio depositionis non exstitit ?

And moreover it is written also in Julian, book thirteen of the Digesta, that he who deposited the thing can at once sue by the action of deposit: for by this very fact the one who received it is acting in fraud, namely that he does not return the thing to the one demanding it back. But Marcellus says that it is not always to be seen that he who does not return it to the demander is acting fraudulently: for what if the thing is in a province or in storehouses, which there is no ability to open at the time of condemnation? Or the condition of the deposit has not arisen?

Dig. 16.3.1.23

Digest 16.3.1.23

Ulpianus 30 ad ed.

Ulpian, 30 on the Edict.

Hanc actionem bonae fidei esse dubitari non oportet.

It ought not to be doubted that this action is one of good faith.

Dig. 16.3.1.24

Digest 16.3.1.24

Ulpianus 30 ad ed.

Ulpian 30 on the Edict.

Et ideo et fructus in hanc actionem venire et omnem causam et partum, dicendum est, ne nuda res veniat.

And therefore it must be said that the fruits also come under this action, and the entire title and the offspring, so that a bare thing may not come.

Dig. 16.3.1.25

Digest 16.3.1.25

Ulpianus 30 ad ed.

Ulpian 30 on the Edict.

Si rem depositam vendidisti eamque postea redemisti in causam depositi, etiamsi sine dolo malo postea perierit, teneri te depositi, quia semel dolo fecisti, cum venderes.

If you sold a deposited thing and afterwards redeemed it for the purpose of the deposit, even if it later perished without dolus malus, you are liable on the action of deposit, because you once acted with dolus when you sold it.

Dig. 16.3.1.26

Digest 16.3.1.26

Ulpianus 30 ad ed.

Ulpian 30 on the edict.

In depositi quoque actione in litem iuratur.

In the action of deposit as well, an oath to the value is sworn.

Dig. 16.3.1.27

Digest 16.3.1.27

Ulpianus 30 ad ed.

Ulpian, 30 on the edict.

Non solum si servus meus, sed et si is qui bona fide mihi serviat rem deposuerit, aequissimum erit dari mihi actionem, si rem ad me pertinentem deposuit.

Not only if my slave, but also if one who serves me in good faith has deposited a thing, it will be most equitable that an action be granted to me, if he deposited a thing pertaining to me.

Dig. 16.3.1.28

Digest 16.3.1.28

Ulpianus 30 ad ed.

Ulpian 30 on the Edict.

Simili modo et si usum fructum in servo habeam, si id quod deposuit ex eo peculio fuit quod ad me pertinebat vel res mea fuit, eadem actione agere potero.

In a similar manner, even if I have a usufruct in a slave, if that which he deposited was from that peculium which pertained to me, or was my property, I shall be able to proceed by the same action.

Dig. 16.3.1.29

Digest 16.3.1.29

Ulpianus 30 ad ed.

Ulpian 30 on the Edict.

Item si servus hereditarius deposuerit, heredi postea adeunti competit actio.

Likewise, if a hereditary slave has made a deposit, an action lies for the heir who later accedes.

Dig. 16.3.1.30

Digest 16.3.1.30

Ulpianus 30 ad ed.

Ulpian, 30 on the Edict.

Si servus deposuit, sive vivat sive decesserit, utiliter dominus hac actione experietur. ipse autem servus manumissus non poterit agere: sed et si fuerit alienatus, adhuc ei competit actio cuius fuit servus cum deponeret: initium enim contractus spectandum est.

If a slave made a deposit, whether he lives or has died, the master will effectively proceed by this action. But the slave himself, once manumitted, will not be able to sue; and even if he has been alienated, the action still lies for him whose slave he was when he deposited, for the beginning of the contract is to be looked to.

Dig. 16.3.1.31

Digest 16.3.1.31

Ulpianus 30 ad ed.

Ulpian 30 on the edict.

Si duorum servus sit qui deposuit, unicuique dominorum in partem competit depositi.

If he who made the deposit is the slave of two, a share of the deposit accrues to each of the masters.

Dig. 16.3.1.32

Digest 16.3.1.32

Ulpianus 30 ad ed.

Ulpian 30 on the edict.

Si rem a servo depositam titio, quem dominum eius putasti cum non esset, restituisses, depositi actione te non teneri celsus ait, quia nullus dolus intercessit: cum titio autem, cui res restituta est, dominus servi aget: sed si exhibuerit, vindicabitur, si vero, cum sciret esse alienum, consumpserit, condemnabitur, quia dolo fecit quo minus possideret.

If you restored to Titius a thing deposited by a slave, whom you supposed to be his dominus when he was not, Celsus says that you are not held by the action of deposit, because no dolus interceded: but with Titius, to whom the thing has been restored, the owner of the slave will sue: yet if he exhibits it, it will be vindicated; but if indeed, though he knew it was another’s, he has consumed it, he will be condemned, because he did it by dolus so that he might not possess it.

Dig. 16.3.1.33

Digest 16.3.1.33

Ulpianus 30 ad ed.

Ulpian 30 on the Edict.

Eleganter apud iulianum quaeritur, si pecuniam servus apud me deposuit ita, ut domino pro libertate eius dem, egoque dedero, an tenear depositi. et libro tertio decimo digestorum scribit, si quidem sic dedero quasi ad hoc penes me depositam teque certioravero, non competere tibi depositi actionem, quia sciens recepisti, careo igitur dolo: si vero quasi meam pro libertate eius numeravero, tenebor. quae sententia vera mihi videtur: hic enim non tantum sine dolo malo non reddidit, sed nec reddidit: aliud est enim reddere, aliud quasi de suo dare.

Elegantly it is asked in Julian, if a slave has deposited money with me on the terms that I give it to his master for his freedom, and I have given it, am I held on the deposit? And in the thirteenth book of the Digesta he writes: if indeed I have given it on this footing, as having been deposited with me for this purpose, and have made you informed, the action of deposit does not lie for you, because you received knowingly; I am therefore free of fraud. But if, on the other hand, I have paid it as if it were my own for his freedom, I shall be held. Which opinion seems true to me: for here he not only did not return it without deceit, but did not return it at all; for to return is one thing, to give as if from one’s own is another.

Dig. 16.3.1.34

Digest 16.3.1.34

Ulpianus 30 ad ed.

Ulpian, 30 on the Edict.

Si pecunia apud te ab initio hac lege deposita sit, ut si voluisses utereris, prius quam utaris depositi teneberis.

If money has been deposited with you from the beginning under this term, that, if you wished, you might use it, you will be held liable as for a deposit before you use it.

Dig. 16.3.1.35

Digest 16.3.1.35

Ulpianus 30 ad ed.

Ulpian 30 on the edict.

Saepe evenit, ut res deposita vel nummi periculo sint eius, apud quem deponuntur: ut puta si hoc nominatim convenit. sed et si se quis deposito obtulit, idem iulianus scribit periculo se depositi illigasse, ita tamen, ut non solum dolum, sed etiam culpam et custodiam praestet, non tamen casus fortuitos.

It often happens that the deposited thing, or monies, are at the risk of the one with whom they are deposited: for instance, if this is expressly agreed. But even if someone has offered himself for the deposit, the same Julian writes that he has bound himself to the risk of the deposit—yet on this condition: that he be answerable not only for dolus (fraud), but also for culpa (fault) and custodia (custody/keeping), though not for casus fortuiti (fortuitous accidents).

Dig. 16.3.1.36

Digest 16.3.1.36

Ulpianus 30 ad ed.

Ulpian 30 on the Edict.

Si pecunia in sacculo signato deposita sit et unus ex heredibus eius qui deposuit veniat repetens, quemadmodum ei satisfiat, videndum est. promenda pecunia est vel coram praetore vel intervenientibus honestis personis et exsolvenda pro parte hereditaria: sed et si resignetur, non contra legem depositi fiet, cum vel praetore auctore vel honestis personis intervenientibus hoc eveniet: residuo vel apud eum remanente, si hoc voluerit ( sigillis videlicet prius ei impressis vel a praetore vel ab his, quibus coram signacula remota sunt) vel, si hoc recusaverit, in aede deponendo. sed si res sunt, quae dividi non possunt, omnes debebit tradere satisdatione idonea a petitore ei praestanda in hoc, quod supra eius partem est: satisdatione autem non interveniente rem in aedem deponi et omni actione depositarium liberari.

If money has been deposited in a sealed purse and one of the heirs of the one who deposited comes demanding it back, it is to be considered how he is to be satisfied. The money must be produced either before the praetor or with honorable persons intervening, and paid out according to his hereditary share: but even if it be unsealed, it will not be contrary to the law of deposit, since this will occur either with the praetor as authorizer or with honorable persons intervening: the residue either remaining with him, if he shall have wished this (the seals, namely, first impressed for him either by the praetor or by those before whom the seals were removed), or, if he refuses this, by depositing it in a temple. But if there are things which cannot be divided, he must deliver them all, suitable satisdation being furnished to him by the petitioner for that which is above his share: however, if satisdation does not intervene, the thing is to be deposited in a temple and the depositary is to be freed from every action.

Dig. 16.3.1.37

Digest 16.3.1.37

Ulpianus 30 ad ed.

Ulpian 30 on the Edict.

Apud iulianum libro tertio decimo digestorum talis species relata est: ait enim, si depositor decesserit et duo existant, qui inter se contendant unusquisque solum se heredem dicens, ei tradendam rem, qui paratus est adversus alterum reum defendere, hoc est eum qui depositum suscepit: quod si neuter hoc onus suscipiat, commodissime dici ait non esse cogendum a praetore iudicium suscipere: oportere igitur rem deponi in aede aliqua, donec de hereditate iudicetur.

With Julian, in the thirteenth book of the Digesta, such a case is reported: for he says, if the depositor has died and there are two who contend between themselves, each asserting that he alone is the heir, the thing is to be delivered to him who is prepared to defend, as defendant against the other, that is, to defend him who received the deposit. But if neither assumes this burden, he says most fittingly that the depositary is not to be compelled by the praetor to undertake a judgment; it ought therefore that the thing be deposited in some temple, until judgment is given concerning the inheritance.

Dig. 16.3.1.38

Digest 16.3.1.38

Ulpianus 30 ad ed.

Ulpian, 30 on the Edict.

Si quis tabulas testamenti apud se depositas pluribus praesentibus legit, ait labeo depositi actione recte de tabulis agi posse. ego arbitror et iniuriarum agi posse, si hoc animo recitatum testamentum est quibusdam praesentibus, ut iudicia secreta eius qui testatus est divulgarentur.

If someone reads the tablets of a testament deposited with him, with several persons present, Labeo says that it is proper that one may proceed by the action of deposit regarding the tablets. I for my part think that an action for outrages (iniuriae) can also be brought, if the testament was recited before certain persons with this intention: that the secret judgments of the testator be divulged.

Dig. 16.3.1.39

Digest 16.3.1.39

Ulpianus 30 ad ed.

Ulpian 30 on the Edict.

Si praedo vel fur deposuerint, et hos Marcellus libro sexto digestorum putat recte depositi acturos: nam interest eorum eo, quod teneantur.

If a robber or a thief have deposited, and Marcellus in the sixth book of the Digesta thinks that these will rightly proceed by the action of deposit: for it is to their interest for the reason that they are bound.

Dig. 16.3.1.40

Digest 16.3.1.40

Ulpianus 30 ad ed.

Ulpian book 30 on the Edict.

Si quis argentum vel aurum depositum petat, utrum speciem an et pondus complecti debeat? et magis est, ut utrumque complectatur, scyphum forte vel lancem vel pateram dicendo et materiam et pondus addendo. sed et si purpura sit infecta vel lana, pondus similiter adiciendum salvo eo, ut, si de quantitate ponderis incertum est, iuranti succurratur.

If someone seeks to recover silver or gold deposited, must he include the kind (species) or also the weight? and the better view is that he should include both, by stating, for instance, a cup or a platter or a patera and by adding the material and the weight. But also, if there is purple-dyed fabric or wool, the weight likewise must be added, with this proviso: if there is uncertainty about the quantity of the weight, let relief be afforded to the one who swears.

Dig. 16.3.1.41

Digest 16.3.1.41

Ulpianus 30 ad ed.

Ulpian 30 on the edict.

Si cista signata deposita sit, utrum cista tantum petatur an et species comprehendendae sint? et ait trebatius cistam repetendam, non singularum rerum depositi agendum: quod et si res ostensae sunt et sic depositae, adiciendae sunt et species vestis. labeo autem ait eum qui cistam deponit singulas quoque res videri deponere: ergo et de rebus agere eum oportet.

If a sealed chest has been deposited, is only the chest to be claimed, or are the specific items (species) also to be included? And Trebatius says that the chest is to be reclaimed, and that one should not bring an action of deposit for the several items; but if the things have been shown and thus deposited, then the individual articles of clothing (species) also are to be added. Labeo, however, says that he who deposits a chest is deemed to deposit the several items as well: therefore he ought also to sue concerning the things.

quid ergo si ignoraverit is, qui depositum suscipiebat, res ibi esse? non multum facere, cum suscepit depositum. ergo et rerum depositi agi posse existimo, quamvis signata cista deposita sit.

What then if the one who was receiving the deposit did not know that there were things in there? It does not make much difference, since he accepted the deposit. Therefore I consider that an action for the deposited things can also be brought, although a sealed chest was deposited.

Dig. 16.3.1.42

Digest 16.3.1.42

Ulpianus 30 ad ed.

Ulpian 30 on the Edict.

Filium familias teneri depositi constat, quia et ceteris actionibus tenetur: sed et cum patre eius agi potest dumtaxat de peculio. idem et in servo: nam cum domino agetur. plane et iulianus scripsit et nobis videtur, si eorum nomine qui sunt in potestate agatur, veniat in iudicium et si quid per eum in cuius iure sunt captus fraudatusve est, ut et dolus eorum veniat, non tantum ipsorum cum quibus contractum est.

It is settled that a son in power (filiusfamilias) is held liable on a deposit, since he is also held by the other actions; but one can also proceed against his father, only to the extent of the peculium. The same holds for a slave: for the action will be brought against the master. Clearly, both Julian wrote, and it seems to us, that if suit is brought in the name of those who are under power, there also comes into judgment whether anyone was ensnared or defrauded through the one in whose legal right they are, so that the fraud (dolus) of those persons too comes into play, not only that of the very persons with whom the contract was made.

Dig. 16.3.1.43

Digest 16.3.1.43

Ulpianus 30 ad ed.

Ulpian 30 on the Edict.

Si apud duos sit deposita res, adversus unumquemque eorum agi poterit nec liberabitur alter, si cum altero agatur: non enim electione, sed solutione liberantur. proinde si ambo dolo fecerunt et alter quod interest praestiterit, alter non convenietur exemplo duorum tutorum: quod si alter vel nihil vel minus facere possit, ad alium pervenietur: idemque et si alter dolo non fecerit et idcirco sit absolutus, nam ad alium pervenietur.

If a thing has been deposited with two, action can be brought against each one of them, nor will the other be freed if suit is brought against one: for they are freed not by election but by solution (payment). Accordingly, if both acted with dolus (fraud) and one has rendered what is of interest (damages), the other will not be sued, by the example of two tutors (guardians); but if the one can do nothing or can do less, recourse will be had to the other; and the same holds if the other did not act with dolus and for that reason has been absolved, for recourse will be had to the other.

Dig. 16.3.1.44

Digest 16.3.1.44

Ulpianus 30 ad ed.

Ulpian 30 on the Edict.

Sed si duo deposuerint et ambo agant, si quidem sic deposuerunt, ut vel unus tollat totum, poterit in solidum agere: sin vero pro parte, pro qua eorum interest, tunc dicendum est in partem condemnationem faciendam.

But if two have deposited and both bring suit, if indeed they deposited on such terms that even one may take the whole, he will be able to sue for the whole; but if rather by share, to the extent of their interest, then it must be said that condemnation should be made for a part.

Dig. 16.3.1.45

Digest 16.3.1.45

Ulpianus 30 ad ed.

Ulpian 30 on the Edict.

Si deposuero apud te, ut post mortem tuam reddas, et tecum et cum herede tuo possum depositi agere: possum enim mutare voluntatem et ante mortem tuam depositum repetere.

If I have deposited with you, to be returned after your death, I can bring the action of deposit both against you and against your heir: for I can change my will and demand back the deposit before your death.

Dig. 16.3.1.46

Digest 16.3.1.46

Ulpianus 30 ad ed.

Ulpian 30 on the edict.

Proinde et si sic deposuero, ut post mortem meam reddatur, potero et ego et heres meus agere depositi, ego mutata voluntate.

Accordingly, even if I have so deposited, that it be returned after my death, both I and my heir will be able to bring the action of deposit, I upon a change of intention.

Dig. 16.3.1.47

Digest 16.3.1.47

Ulpianus 30 ad ed.

Ulpian 30 on the Edict.

Quia autem dolus dumtaxat in hanc actionem venit, quaesitum est, si heres rem apud testatorem depositam vel commodatam distraxit ignarus depositam vel commodatam, an teneatur. et quia dolo non fecit, non tenebitur de re: an tamen vel de pretio teneatur, quod ad eum pervenit? et verius est teneri eum: hoc enim ipso dolo facit, quod id quod ad se pervenit non reddit.

Since, however, only fraud enters into this action, the question has been raised whether, if an heir, unaware that a thing had been deposited or lent with the testator, sold it, he is held liable. And because he did not act with fraud, he will not be liable as to the thing: whether nevertheless he is held at least for the price that came to him? And the truer view is that he is liable: for by this very fact he acts fraudulently, in that he does not return that which came to him.

Dig. 16.3.2

Digest 16.3.2

Paulus 31 ad ed.

Paulus, 31 on the Edict.

Quid ergo, si pretium nondum exegit aut minoris quam debuit vendidit? actiones suas tantummodo praestabit.

What then, if he has not yet exacted the price or has sold for less than he ought? He will provide only his actions.

Dig. 16.3.3

Digest 16.3.3

Ulpianus 31 ad ed.

Ulpian, 31 on the Edict.

Plane si possit rem redimere et praestare nec velit, non caret culpa, quemadmodum si redemptam vel alia ratione suam factam noluit praestare causatus, quod semel ignarus vendiderit.

Plainly, if he can redeem the thing and render it and yet is unwilling, he is not without fault, just as if, when it has been redeemed or has by another rationale been made his own, he refused to render it, pleading that he once, in ignorance, sold it.

Dig. 16.3.4

Digest 16.3.4

Paulus 5 ad plaut.

Paulus 5 on Plautius.

Sed et si non sit heres, sed putavit se heredem et vendidit, simili modo lucrum ei extorquebitur.

But also, if he is not the heir, but supposed himself the heir and sold, in a similar manner the profit will be exacted from him.

Dig. 16.3.5pr.

Digest 16.3.5, beginning.

Ulpianus 30 ad ed.

Ulpian, 30 on the edict.

Ei, apud quem depositum esse dicetur, contrarium iudicium depositi datur, in quo iudicio merito in litem non iuratur: non enim de fide rupta agitur, sed de indemnitate eius qui depositum suscepit.

To the one with whom a deposit is said to exist, the contrary action of deposit is given; in which action, rightly, no oath in litem is sworn: for the matter is not about broken good faith, but about the indemnity of him who undertook the deposit.

Dig. 16.3.5.1

Digest 16.3.5.1

Ulpianus 30 ad ed.

Ulpian 30 on the edict.

In sequestrem depositi actio competit. si tamen cum sequestre convenit, ut certo loco rem depositam exhiberet, nec ibi exhibeat, teneri eum palam est: quod si de pluribus locis convenit, in arbitrio eius est, quo loci exhibeat: sed si nihil convenit, denuntiandum est ei, ut apud praetorem exhibeat.

The action of deposit lies against a sequestrator. However, if it was agreed with the sequestrator that he would produce the deposited thing in a definite place, and he does not produce it there, it is evident that he is liable: but if it was agreed as to several places, it is at his discretion in which place he produces it: but if nothing was agreed, notice must be given to him to produce it before the praetor.

Dig. 16.3.5.2

Digest 16.3.5.2

Ulpianus 30 ad ed.

Ulpian 30 on the edict.

Si velit sequester officium deponere, quid ei faciendum sit? et ait pomponius adire eum praetorem oportere et ex eius auctoritate denuntiatione facta his qui eum elegerant, ei rem restituendam qui praesens fuerit. sed hoc non semper verum puto: nam plerumque non est permittendum officium, quod semel suscepit, contra legem depositionis deponere, nisi iustissima causa interveniente: et cum permittitur, raro ei res restituenda est qui venit, sed oportet eam arbitratu iudicis apud aedem aliquam deponi.

If a sequester should wish to lay down his office, what is to be done for him? And Pomponius says that he ought to approach the praetor and, by his authority, after a notification has been made to those who had chosen him, the thing is to be restored to whoever shall be present. But I do not think this always true: for very often it is not to be permitted that a duty, once undertaken, be laid down contrary to the law of deposition, unless a most just cause intervenes; and when it is permitted, it is rarely that the thing should be restored to the one who comes, but it ought, by the arbitrament of the judge, to be deposited in some temple.

Dig. 16.3.6

Digest 16.3.6

Paulus 2 ad ed.

Paulus book 2 on the Edict.

Proprie autem in sequestre est depositum, quod a pluribus in solidum certa condicione custodiendum reddendumque traditur.

Properly, however, a sequestral deposit is that which is entrusted by several persons in solidum, to be kept and returned upon a certain condition.

Dig. 16.3.7pr.

Digest 16.3.7pr.

Ulpianus 30 ad ed.

Ulpian 30 on the Edict.

Si hominem apud se depositum ut quaestio de eo haberetur, ac propterea vinctum vel ad malam mansionem extensum sequester solverit misericordia ductus, dolo proximum esse quod factum est arbitror, quia cum sciret, cui rei pararetur, intempestive misericordiam exercuit, cum posset non suscipere talem causam quam decipere.

If a man has been deposited with him so that a formal inquiry might be held concerning him, and for that reason, being bound or stretched out to the “bad lodging,” the sequester, led by mercy, were to release him, I judge what was done to be next to fraud (dolus), because, since he knew for what purpose it was being prepared, he exercised mercy untimely, when he could have refrained from undertaking such a case rather than deceive.

Dig. 16.3.7.1

Digest 16.3.7.1

Ulpianus 30 ad ed.

Ulpian 30 on the edict.

Datur actio depositi in heredem ex dolo defuncti in solidum: quamquam enim alias ex dolo defuncti non solemus teneri nisi pro ea parte quae ad nos pervenit, tamen hic dolus ex contractu reique persecutione descendit ideoque in solidum unus heres tenetur, plures vero pro ea parte qua quisque heres est.

An action of deposit is given against the heir for the dolus of the deceased, in solidum: for although otherwise we are not wont to be held on account of the dolus of the deceased except for that part which has come to us, nevertheless here the dolus derives from contract and from the rei-persecution (pursuit of the thing); and therefore a single heir is held for the whole, but several heirs for that share in which each is heir.

Dig. 16.3.7.2

Digest 16.3.7.2

Ulpianus 30 ad ed.

Ulpian, 30 on the Edict.

Quotiens foro cedunt nummularii, solet primo loco ratio haberi depositariorum, hoc est eorum qui depositas pecunias habuerunt, non quas faenore apud nummularios vel cum nummulariis vel per ipsos exercebant. et ante privilegia igitur, si bona venierint, depositariorum ratio habetur, dummodo eorum qui vel postea usuras acceperunt ratio non habeatur, quasi renuntiaverint deposito.

Whenever money‑changers withdraw from the forum, priority is customarily given in the first place to the depositors—that is, to those who had moneys deposited—not to those which they were employing at interest either at the money‑changers’, or with the money‑changers, or through them. And therefore, even before privileges, if the assets have been sold, the depositors’ claim is considered, provided that no regard is had to those who afterwards accepted interest, as if they had renounced the deposit.

Dig. 16.3.7.3

Digest 16.3.7.3

Ulpianus 30 ad ed.

Ulpian, 30 on the Edict.

Item quaeritur, utrum ordo spectetur eorum qui deposuerunt an vero simul omnium depositariorum ratio habeatur. et constat simul admittendos: hoc enim rescripto principali significatur.

Likewise it is asked whether the order is to be observed of those who have deposited, or whether rather consideration should be had of all the depositaries at once. And it is settled that they are to be admitted together: for this is signified by an imperial rescript.

Dig. 16.3.8

Digest 16.3.8

Papinianus 9 quaest.

Papinian, 9 Questions.

Quod privilegium exercetur non in ea tantum quantitate, quae in bonis argentarii ex pecunia deposita reperta est, sed in omnibus fraudatoris facultatibus: idque propter necessarium usum argentariorum ex utilitate publica receptum est. plane sumptus causa, qui necessarie factus est, semper praecedit: nam deducto eo bonorum calculus subduci solet.

That privilege is exercised not only in that quantity which is found in the banker’s assets from the deposited money, but in all the faculties of the defrauder: and this, on account of the necessary use of bankers, has been accepted from considerations of public utility. Clearly, the matter of expenses, which has been necessarily incurred, always takes precedence: for, with that deducted, the calculation of the estate is wont to be drawn up.

Dig. 16.3.9

Digest 16.3.9

Paulus 17 ad ed.

Paulus 17 on the Edict.

In depositi actione si ex facto defuncti agatur adversus unum ex pluribus heredibus, pro parte hereditaria agere debeo: si vero ex suo delicto, pro parte non ago: merito, quia aestimatio refertur ad dolum, quem in solidum ipse heres admisit.

In the action of deposit, if suit is brought on account of the deed of the deceased against one of several heirs, I ought to sue for the hereditary share; but if on account of his own delict, I do not sue for a share: rightly, because the assessment has reference to the fraud, which the heir himself has committed for the whole.

Dig. 16.3.10

Digest 16.3.10

Iulianus 2 ex minic.

Julian 2 from Minicius.

Nec adversus coheredes eius, qui dolo carent, depositi actio competit.

Nor does the action of deposit lie against his coheirs who are free from fraud.

Dig. 16.3.11

Digest 16.3.11

Ulpianus 41 ad sab.

Ulpian 41 On Sabinus.

Quod servus deposuit, is apud quem depositum est servo rectissime reddet ex bona fide: nec enim convenit bonae fidei abnegare id quod quis accepit, sed debebit reddere ei a quo accepit, sic tamen, si sine dolo omni reddat, hoc est, ut nec culpae quidem suspicio sit. denique sabinus hoc explicuit addendo: " nec ulla causa intervenit, quare putare possit dominum reddi nolle". hoc ita est, si potuit suspicari, iusta scilicet ratione motus: ceterum sufficit bonam fidem adesse. sed et si ante eius rei furtum fecerat servus, si tamen ignoravit is apud quem deposuit vel credidit dominum non invitum fore huius solutionis, liberari potest: bona enim fides exigitur.

What a slave has deposited, the person with whom it was deposited will most correctly return to the slave in accordance with good faith: for it is not consistent with good faith to deny that which one has received, but he ought to return it to the one from whom he received it, provided, however, that he return it without any fraud at all, that is, so that there is not even a suspicion of fault. Finally, Sabinus explained this by adding: “and no cause has intervened whereby he could think that the owner would not wish it to be returned.” This is so, if he was able to suspect it, being moved, of course, by a just reason; otherwise it suffices that good faith be present. But even if the slave had previously committed theft of that thing, nevertheless if the person with whom he deposited did not know, or believed that the owner would not be unwilling for this restitution, he can be released: for good faith is required.

non tantum autem si remanenti in servitute fuerit solutum, sed etiam si manumisso vel alienato, ex iustis causis liberatio contingit, scilicet si quis ignorans manumissum vel alienatum solvit. idemque et in omnibus debitoribus servandum pomponius scribit.

not only, moreover, if payment has been made while he was remaining in servitude, but also if after manumission or alienation, discharge occurs on just causes, namely, if someone, not knowing that he had been manumitted or alienated, paid. Pomponius writes that the same is to be observed in all debtors.

Dig. 16.3.12pr.

Digest 16.3.12pr.

Pomponius 22 ad sab.

Pomponius, Book 22 on Sabinus.

Si in asia depositum fuerit, ut romae reddatur, videtur id actum, ut non impensa eius id fiat apud quem depositum sit, sed eius qui deposuit.

If a deposit has been made in Asia, to be returned at Rome, it seems to have been arranged that the expense thereof should not be borne by the person with whom it is deposited, but by the depositor.

Dig. 16.3.12.1

Digest 16.3.12.1

Pomponius 22 ad sab.

Pomponius 22 on Sabinus.

Depositum eo loco restitui debet, in quo sine dolo malo eius est, apud quem depositum est: ubi vero depositum est, nihil interest. eadem dicenda sunt communiter et in omnibus bonae fidei iudiciis. sed dicendum est, si velit actor suis impensis suoque periculo perferri rem romam, ut audiendus sit, quoniam et in ad exhibendum actione id servatur.

A deposit ought to be restored in that place in which, without malicious fraud, it is in the hands of the one with whom it was deposited: as to the place where it was deposited, it makes no difference. The same is to be said generally also in all good-faith actions. But it must be said that, if the plaintiff wishes the thing to be conveyed to Rome at his own expense and at his own risk, he is to be heard, since this too is observed in the action ad exhibendum.

Dig. 16.3.12.2

Digest 16.3.12.2

Pomponius 22 ad sab.

Pomponius 22 on Sabinus.

Cum sequestre recte agetur depositi sequestraria actione, quam et in heredem eius reddi oportet.

Since one will properly sue a sequester by the sequestrarian action of deposit, which ought also to be granted against his heir.

Dig. 16.3.12.3

Digest 16.3.12.3

Pomponius 22 ad sab.

Pomponius 22 on Sabinus.

Quemadmodum quod ex stipulatu vel ex testamento dari oporteat, post iudicium acceptum cum detrimento rei periret, sic depositum quoque eo die, quo depositi actum sit, periculo eius apud quem depositum fuerit est, si iudicii accipiendi tempore potuit id reddere reus nec reddidit.

Just as what ought to be given from stipulation or from a testament, after the judgment has been accepted, would perish with detriment of the thing, so too a deposit, on the day on which an action on deposit has been brought, is at the peril of the one with whom it has been deposited, if at the time of accepting the suit the defendant was able to return it and did not return it.

Dig. 16.3.13pr.

Digest 16.3.13pr.

Paulus 31 ad ed.

Paulus 31 on the Edict.

Si quis infitiatus sit non adversus dominum, sed quod eum qui rem depositam petebat verum procuratorem non putaret aut eius qui deposuisset heredem, nihil dolo malo fecit: postea autem si cognoverit, cum eo agi poterit, quoniam nunc incipit dolo malo facere, si reddere eam non vult.

If anyone has made denial, not as against the owner, but on the ground that he did not think the person who was demanding the deposited thing to be the true procurator or the heir of the one who had deposited it, he has done nothing by dolus malus; afterwards, however, if he comes to know, he may be sued, since he now begins to act by dolus malus, if he is unwilling to return it.

Dig. 16.3.13.1

Digest 16.3.13.1

Paulus 31 ad ed.

Paulus 31 on the Edict.

Competit etiam condictio depositae rei nomine, sed non antequam id dolo admissum sit: non enim quemquam hoc ipso, quod depositum accipiat, condictione obligari, verum quod dolum malum admiserit.

A condictio also lies under the title of the deposited thing, but not until that has been committed by dolus: for no one is bound by a condictio by the very fact that he accepts a deposit, but because he has committed dolus malus.

Dig. 16.3.14pr.

Digest 16.3.14pr.

Gaius 9 ad ed. provinc.

Gaius 9 on the Provincial Edict.

Si plures heredes exstiterint ei qui deposuerit, dicitur, si maior pars adierit, restituendam rem praesentibus: maiorem autem partem non ex numero utique personarum, sed ex magnitudine portionum hereditariarum intellegendam: cautela idonea reddenda.

If several heirs have arisen for him who deposited, it is said that, if the greater part has entered upon the inheritance, the thing must be restored to those present: moreover, the greater part is to be understood not from the number of persons, but from the magnitude of the hereditary portions: suitable security must be furnished.

Dig. 16.3.14.1

Digest 16.3.14.1

Gaius 9 ad ed. provinc.

Gaius 9 on the provincial edict

Sive autem cum ipso apud quem deposita est actum fuerit sive cum herede eius et sua natura res ante rem iudicatam interciderit, veluti si homo mortuus fuerit, sabinus et cassius absolvi debere eum cum quo actum est dixerunt, quia aequum esset naturalem interitum ad actorem pertinere, utique cum interitura esset ea res et si restituta esset actori.

However, whether the action has been brought against the very person with whom the thing was deposited or against his heir, and the thing by its own nature has perished before the matter was adjudged, for instance if a slave has died, Sabinus and Cassius said that he with whom the action was brought ought to be absolved, because it was equitable that the natural perishing should pertain to the plaintiff—especially since that thing would have perished even if it had been restored to the plaintiff.

Dig. 16.3.15

Digest 16.3.15

Iulianus 13 Dig.

Julian 13 Dig.

Qui rem suam deponi apud se patitur vel utendam rogat, nec depositi nec commodati actione tenetur: sicuti qui rem suam conducit aut precario rogat, nec precario tenetur nec ex locato.

He who allows his own property to be deposited with him, or asks to use it, is liable neither to the action of deposit (actio depositi) nor to that of commodatum (actio commodati); just as he who hires his own property, or asks for it by way of precarium, is liable neither to the precarium action (actio precaria) nor to the action ex locato (actio ex locato).

Dig. 16.3.16

Digest 16.3.16

Africanus 7 quaest.

Africanus Questions 7.

Si is, apud quem rem deposueris, apud alium eam deponat et ille dolo quid admiserit, ob dolum eius, apud quem postea sit depositum, eatenus eum teneri apud quem tu deposueris, ut actiones suas tibi praestet.

If the one with whom you have deposited the thing deposits it with another, and that man has committed something by fraud, on account of the fraud of him with whom it was afterward deposited, the one with whom you deposited it is liable to this extent: that he furnish (make over) to you his actions.

Dig. 16.3.17pr.

Digest 16.3.17, pr.

Florus 7 inst.

Florus 7 Institutes.

Licet deponere tam plures quam unus possunt, attamen apud sequestrem non nisi plures deponere possunt: nam tum id fit, cum aliqua res in controversiam deducitur. itaque hoc casu in solidum unusquisque videtur deposuisse: quod aliter est, cum rem communem plures deponunt.

It is permitted that both several persons and a single person may deposit, nevertheless with a sequestrator only several can deposit: for that happens when some matter is brought into controversy. And so in this case each one is seen to have deposited in solidum; which is otherwise when several deposit a common thing.

Dig. 16.3.17.1

Digest 16.3.17.1

Florus 7 inst.

Florus 7 Institutes.

Rei depositae proprietas apud deponentem manet: sed et possessio, nisi apud sequestrem deposita est: nam tum demum sequester possidet: id enim agitur ea depositione, ut neutrius possessioni id tempus procedat.

The ownership of the deposited thing remains with the depositor: and likewise the possession, unless it has been deposited with a sequester: for then and only then does the sequester possess: for this is what is aimed at by that sort of deposit, that that time does not accrue to the possession of either party.

Dig. 16.3.18

Digest 16.3.18

Nerva 2 membr.

Nerva 2 parchment leaves.

De eo, quod tumultus incendii ruinae naufragii causa depositum est, in heredem de dolo mortui actio est pro hereditaria portione et in simplum et intra annum quoque: in ipsum et in solidum et in duplum et in perpetuum datur.

Concerning that which was deposited by reason of the tumult of a fire, of a collapse, or of a shipwreck, an action for the fraud of the deceased lies against the heir for the hereditary portion, and for single (in simplum), and also within a year; against the person himself it is granted both for the whole (in solidum) and for double (in duplum) and in perpetuity.

Dig. 16.3.19

Digest 16.3.19

Ulpianus 17 ad ed.

Ulpian 17 on the Edict.

Iulianus et Marcellus putant filium familias depositi recte agere posse.

Julian and Marcellus think that a son under paternal power can rightly bring the action of deposit.

Dig. 16.3.20

Digest 16.3.20

Paulus 18 ad ed.

Paulus 18 On the Edict.

Si sine dolo malo rem depositam tibi amiseris, nec depositi teneris nec cavere debes, si deprehenderis eam reddi: si tamen ad te iterum pervenerit, depositi teneris.

If, without malicious fraud, you have lost the thing deposited with you, you are neither liable on the deposit nor must you give security that, if you discover it, it will be returned: yet if it should come to you again, you are liable on the deposit.

Dig. 16.3.21pr.

Digest 16.3.21, beginning.

Paulus 60 ad ed.

Paul 60 on the Edict.

Si apud filium familias res deposita sit et emancipatus rem teneat, pater nec intra annum de peculio debet conveniri, sed ipse filius.

If a thing has been deposited with a son under paternal power and, once emancipated, he retains the thing, the father ought not to be sued—even within a year—on the peculium, but the son himself.

Dig. 16.3.21.1

Digest 16.3.21.1

Paulus 60 ad ed.

Paulus 60 on the Edict.

Plus trebatius existimat, etiamsi apud servum depositum sit et manumissus rem teneat, in ipsum dandam actionem, non in dominum, licet ex ceteris causis in manumissum actio non datur.

Moreover Trebatius judges that, even if it was deposited with a slave and, after manumission, he holds the thing, the action is to be given against him, not against the master, although from the other causes an action is not given against the manumitted person.

Dig. 16.3.22

Digest 16.3.22

Marcellus 5 Dig.

Marcellus 5 Digest

Si duo heredes rem apud defunctum depositam dolo interverterint, quodam utique casu in partes tenebuntur: nam si diviserint decem milia, quae apud defunctum deposita fuerant, et quina milia abstulerint et uterque solvendo est, in partes obstricti erunt: nec enim amplius actoris interest. quod si lancem conflaverint aut conflari ab aliquo passi fuerint aliave quae species dolo eorum interversa fuerit, in solidum conveniri poterunt, ac si ipsi servandam suscepissent: nam certe verum est in solidum quemque dolo fecisse et nisi pro solido res non potest restitui. nec tamen absurde sentiet, qui hoc putaverit plane nisi integrae rei restitutione eum, cum quo actum fuerit, liberari non posse, condemnandum tamen, si res non restituetur, pro qua parte heres exstitit.

If two heirs shall have, by fraud, diverted a thing deposited with the deceased, in a certain case assuredly they will be liable in shares: for if they have divided ten thousand, which had been deposited with the deceased, and have taken five thousand each, and each is solvent, they will be bound in shares; for the plaintiff’s interest is no more. But if they have melted down a platter, or have allowed it to be melted by someone, or if any other item has been converted by their fraud, they can be sued for the whole, as if they themselves had undertaken to keep it safe: for surely it is true that each has by his fraud acted as to the whole, and the thing cannot be restored unless for the whole. Nor, however, will he think absurdly who shall have held this plainly: that unless by restitution of the entire thing, he with whom suit has been brought cannot be released; yet he must be condemned, if the thing shall not be restored, for that share in which he stood heir.

Dig. 16.3.23

Digest 16.3.23

Modestinus 2 diff.

Modestinus 2 differences.

Actione depositi conventus servo constituto cibariorum nomine apud eundem iudicem utiliter experitur.

When convened by the action of deposit, he proceeds usefully before the same judge, once an allowance for the slave’s rations has been fixed.

Dig. 16.3.24

Digest 16.3.24

Papinianus 9 quaest.

Papinian, 9 Questions.

" lucius titius sempronio salutem. centum nummos, quos hac die commendasti mihi adnumerante servo sticho actore, esse apud me ut notum haberes, hac epistula manu mea scripta tibi notum facio: quae quando voles et ubi voles confestim tibi numerabo. " quaeritur propter usurarum incrementum.

" lucius titius to sempronius, greetings. The one hundred coins which on this day you entrusted to me, with the slave Stichus, the agent, counting them out, I make known to you by this letter written with my own hand, so that you may have it as known, that they are with me: which, whenever you wish and wherever you wish, I will immediately pay out to you." the question is raised on account of the increase of interest.

respondi depositi actionem locum habere: quid est enim aliud commendare quam deponere? quod ita verum est, si id actum est, ut corpora nummorum eadem redderentur: nam si ut tantundem solveretur convenit, egreditur ea res depositi notissimos terminos. in qua quaestione si depositi actio non teneat, cum convenit tantundem, non idem reddi, rationem usurarum haberi non facile dicendum est.

I answered that the action for deposit has place: for what is “to commend” other than to deposit? This is true on this understanding, if it was transacted that the same bodies of the coins be returned; for if it was agreed that an equivalent amount be paid, the matter goes beyond the very well-known termini of deposit. In this question, if the action for deposit does not lie, since it was agreed that as much, not the same, be returned, it is not readily to be said that an account of usury (interest) should be taken.

et est quidem constitutum in bonae fidei iudiciis, quod ad usuras attinet ut tantundem possit officium arbitri quantum stipulatio: sed contra bonam fidem et depositi naturam est usuras ab eo desiderare temporis ante moram, qui beneficium in suscipienda pecunia dedit. si tamen ab initio de usuris praestandis convenit, lex contractus servabitur.

and indeed it is established in good‑faith judgments, as regards usuries (interest), that the office of the arbiter can do as much as a stipulation; but it is against good faith and the nature of a deposit to demand usuries for the time before delay (mora) from one who conferred a benefit by undertaking the money. If, however, from the beginning it was agreed that usuries be furnished, the law of the contract will be observed.

Dig. 16.3.25pr.

Digest 16.3.25pr.

Papinianus 3 resp.

Papinian, 3 responses.

Die sponsaliorum aut postea res oblatas puellae, quae sui iuris fuit, pater suscepit: heres eius ut exhibeat recte convenietur etiam actione depositi.

On the day of the betrothal or thereafter, the father received the things presented to the girl, who was sui iuris; his heir is rightly sued to produce them, even by an action of deposit.

Dig. 16.3.25.1

Digest 16.3.25.1

Papinianus 3 resp.

Papinian 3 responses.

Qui pecuniam apud se non obsignatam, ut tantundem redderet, depositam ad usus proprios convertit, post moram in usuras quoque iudicio depositi condemnandus est.

He who converts to his own uses money left with him unsealed, deposited so that he might return the equivalent, after delay must also be condemned to interest in the action of deposit.

Dig. 16.3.26pr.

Digest 16.3.26pr.

Paulus 4 resp.

Paul 4 Replies.

Publia maevia cum proficisceretur ad maritum suum, arcam clusam cum veste et instrumentis commendavit gaiae seiae et dixit ei: " cum sana salvave venero, restitues mihi: certe, si aliquid mihi humanum contigerit, filio meo, quem ex alio marito suscepi. " defuncta ea intestata desidero res commendatae cui restitui debeant, filio an marito. paulus respondit filio.

Publia Maevia, when she was setting out to her husband, entrusted to Gaia Seia a closed chest with clothing and instruments and said to her: " when I shall have come healthy and safe, you will restore to me: surely, if something human should befall me, to my son, whom I have received from another husband. " she having died intestate, I desire to know to whom the things entrusted ought to be restored, to the son or to the husband. paulus answered: to the son.

Dig. 16.3.26.1

Digest 16.3.26.1

Paulus 4 resp.

Paulus 4 responses.

Lucius titius ita cavit: " elabon kai exw eis logon parakatavykys ta progegrammena tou arguriou dynaria muria, kai panta poiysw kai sumfwnw kai hwmologysa, hws progegraptai: kai sunevemyn xorygysai soi tokon hekastys mnas hekastou mynos obolous tessaras mexri tys apodosews pantos tou arguriou. " quaero, an usurae peti possunt. paulus respondit eum contractum de quo quaeritur depositae pecuniae modum excedere, et ideo secundum conventionem usurae quoque actione depositi peti possunt.

Lucius titius thus provided: " I have received and I hold, on account of a deposit, the things written above—of the silver, ten thousand denarii; and I will do all things and I agree and I have acknowledged, as has been written before: and I agreed to furnish to you interest, four obols for each mina of each month, until the repayment of all the silver. " I ask whether interest can be sought. paulus answered that the contract about which inquiry is made exceeds the measure of deposited money, and therefore, according to the convention, the interest too can be sought by the action of deposit.

Dig. 16.3.26.2

Digest 16.3.26.2

Paulus 4 resp.

Paul 4 responses.

" titius semproniis salutem. habere me a vobis auri pondo plus minus decem et discos duos saccum signatum: ex quibus debetis mihi decem, quos apud titium deposuistis: item quos trophimati decem: item ex ratione patris vestri decem et quod excurrit. " quaero, an ex huiuscemodi scriptura aliqua obligatio nata sit, scilicet quod ad solam pecuniae causam attinet.

" titius to the sempronii, greetings. that I have from you by weight more or less ten pounds of gold and two dishes, a sealed sack: out of which you owe me ten, which you deposited with titius: likewise ten to trophimas: likewise from your father’s account ten and whatever runs over. " I ask whether from a writing of this kind any obligation has arisen, namely insofar as it pertains to the pecuniary cause alone.

respondit ex epistula, de qua quaeritur, obligationem quidem nullam natam videri, sed probationem depositarum rerum impleri posse: an autem is quoque, qui deberi sibi cavit in eadem epistula decem, probare possit hoc quod scripsit, iudicem aestimaturum.

he answered that from the letter about which inquiry is made, no obligation seems to have arisen, but that proof of the deposited things can be made good; and whether moreover he also, who in the same letter had it guaranteed to himself that ten were owed, can prove what he wrote, the judge will assess.

Dig. 16.3.27

Digest 16.3.27

Paulus 7 resp.

Paulus 7 Responses.

Lucius titius cum haberet filiam in potestate seiam, pamphilo servo alieno in matrimonium collocavit, cui etiam dotem dedit, quam sub titulo depositi in cautionem contulit, et postea nulla denuntiatione a domino facta pater decessit, mox et pamphilus servus: quaero, qua actione seia pecuniam petere possit, cum ipsa patri heres extiterit. paulus respondit, quoniam dos constitui non potuit, ex causa depositi actione de peculio pecuniam repetendam.

Lucius titius, since he had a daughter seia in his power, settled her in matrimony to pamphilus, another’s slave, to whom he also gave a dowry, which he transferred under the title of deposit as a security; and afterwards, with no notice made by the master, the father died, and soon pamphilus the slave as well. I ask by what action seia can seek the money, since she herself has become heir to her father. paulus responded: since a dowry could not be constituted, the money is to be reclaimed on the ground of deposit by an action de peculio.

Dig. 16.3.28

Digest 16.3.28

Scaevola 1 resp.

Scaevola 1 response.

Quintus caecilius candidus ad paccium rogatianum epistulam scripsit in verba infra scripta: " caecilius candidus paccio rogatiano suo salutem. viginti quinque nummorum quos apud me esse voluisti, notum tibi ista hac epistula facio ad ratiunculam meam ea pervenisse: quibus ut primum prospiciam, ne vacua tibi sint: id est ut usuras eorum accipias, curae habebo". quaesitum est, an ex ea epistula etiam usurae peti possint. respondi deberi ex bonae fidei iudicio usuras, sive percepit sive pecunia in re sua usus est.

Quintus caecilius candidus wrote a letter to paccius rogatianus in the words written below: "caecilius candidus sends greetings to his paccus rogatianus. As to the 25 coins which you wished to be with me, I make it known to you by this letter that they have come into my account: and I will take care at once to see that they are not idle for you—that is, that you may receive their interest." It was asked whether from that letter interest also can be claimed. I answered that interest is owed under a good‑faith judgment, whether he actually received it or used the money in his own affair.

Dig. 16.3.29pr.

Digest 16.3.29pr.

Paulus 2 sent.

Paul 2 sentences.

Si sacculum vel argentum signatum deposuero et is penes quem depositum fuit me invito contrectaverit, et depositi et furti actio mihi in eum competit.

If I have deposited a little bag or stamped (coined) silver, and he in whose custody the deposit was has handled it against my will, both the action of deposit and the action of theft lie to me against him.

Dig. 16.3.29.1

Digest 16.3.29.1

Paulus 2 sent.

Paulus 2 sentences.

Si ex permissu meo deposita pecunia is penes quem deposita est utatur, ut in ceteris bonae fidei iudiciis usuras eius nomine praestare mihi cogitur.

If, with my permission, the person with whom the deposited money is deposited uses it, he is compelled, as in other good‑faith judgments, to render me interest on its account.

Dig. 16.3.30

Digest 16.3.30

Nerva 1 resp.

Nerva 1 response.

Si fideiussor pro te apud quem depositum est litis aestimatione damnatus sit, rem tuam fieri.

If the surety on your behalf, with whom the deposit was placed, is condemned in the assessed value of the action, the thing becomes your property.

Dig. 16.3.31pr.

Digest 16.3.31 beginning.

Tryphonus 9 disp.

Tryphonus 9 Disputations.

Bona fides quae in contractibus exigitur aequitatem summam desiderat: sed eam utrum aestimamus ad merum ius gentium an vero cum praeceptis civilibus et praetoriis? veluti reus capitalis iudicii deposuit apud te centum: is deportatus est, bona eius publicata sunt: utrumne ipsi haec reddenda an in publicum deferenda sint? si tantum naturale et gentium ius intuemur, ei qui dedit restituenda sunt: si civile ius et legum ordinem, magis in publicum deferenda sunt: nam male meritus publice, ut exemplo aliis ad deterrenda maleficia sit, etiam egestate laborare debet.

Good faith, which is demanded in contracts, desires the highest equity: but do we assess it by the mere law of nations, or indeed together with the civil and praetorian precepts? For example, a defendant in a capital trial deposited a hundred with you: he has been deported, his goods have been made public property: are these to be returned to him, or to be delivered into the public? If we look only to natural law and the law of nations, they are to be restored to him who gave: if to the civil law and the order of the laws, rather they are to be carried into the public: for one who has deserved ill publicly, so that he may be an example to others for deterring misdeeds, ought also to suffer want.

Dig. 16.3.31.1

Digest 16.3.31.1

Tryphonus 9 disp.

Tryphonus Disputations 9.

Incurrit hic et alia inspectio. bonam fidem inter eos tantum, quos contractum est, nullo extrinsecus adsumpto aestimare debemus an respectu etiam aliarum personarum, ad quas id quod geritur pertinet? exempli loco latro spolia quae mihi abstulit posuit apud seium inscium de malitia deponentis: utrum latroni an mihi restituere seius debeat?

Another examination arises here as well. Ought we to assess good faith only between those between whom the contract was concluded, with nothing extrinsic assumed, or also with respect to other persons to whom that which is being transacted pertains? By way of example: a robber placed with Seius the spoils which he took from me, Seius being unaware of the depositor’s malice; ought Seius restore them to the robber or to me?

si per se dantem accipientemque intuemur, haec est bona fides, ut commissam rem recipiat is qui dedit: si totius rei aequitatem, quae ex omnibus personis quae negotio isto continguntur impletur, mihi reddenda sunt, quo facto scelestissimo adempta sunt. et probo hanc esse iustitiam, quae suum cuique ita tribuit, ut non distrahatur ab ullius personae iustiore repetitione. quod si ego ad petenda ea non veniam, nihilo minus ei restituenda sunt qui deposuit, quamvis male quaesita deposuit.

if we consider the giver and the receiver in themselves, this is good faith: that the one who gave should receive back the thing committed; but if we consider the equity of the whole matter, which is fulfilled from all the persons who are connected with that transaction, the things must be returned to me, from whom by that most criminal deed they were taken away. And I approve that this is justice, which renders to each his own in such a way that it is not drawn off from the more just repetition (recovery) of any person. But if I do not come to seek those things, nonetheless they are to be restored to the one who deposited them, although he deposited things ill-gotten.

quod et Marcellus in praedone et fure scribit. si tamen ignorans latro cuius filio vel servo rem abstulisset apud patrem dominumve eius deposuit ignorantem, nec ex iure gentium consistet depositum, cuius haec est potestas, ut alii, non domino sua ipsius res quasi aliena, servanda detur. et si rem meam fur, quam me ignorante subripuit, apud me etiamnunc delictum eius ignorantem deposuerit, recte dicetur non contrahi depositum, quia non est ex fide bona rem suam dominum praedoni restituere compelli.

which also Marcellus writes concerning a robber and a thief. If, however, a robber, not knowing whose son or slave it was from whom he had taken the thing, deposited it with that person’s father or with his master, who was ignorant, neither will a deposit subsist under the law of nations, whose competence is this: that one’s own thing be given to another, not to the owner, to be kept, as if it were another’s. And if a thief should deposit my property, which he pilfered while I was unaware, with me, I still being ignorant of his offense, it will rightly be said that no deposit is contracted, because it is not according to good faith that the owner be compelled to restore his own property to a robber.

sed et si etiamnunc ab ignorante domino tradita sit quasi ex causa depositi, tamen indebiti dati condictio competet.

but also, if even now it has been delivered by an unknowing owner as if on the ground of a deposit, nevertheless the condiction for what was not owed will lie.

Dig. 16.3.32

Digest 16.3.32

Celsus 11 Dig.

Celsus 11 Digest.

Quod nerva diceret latiorem culpam dolum esse, proculo displicebat, mihi verissimum videtur. nam et si quis non ad eum modum quem hominum natura desiderat diligens est, nisi tamen ad suum modum curam in deposito praestat, fraude non caret: nec enim salva fide minorem is quam suis rebus diligentiam praestabit.

That Nerva said that gross negligence is dolus displeased Proculus; to me it seems most true. For even if someone is not diligent to that degree which human nature requires, unless he at least renders care in a deposit according to his own standard, he is not without fraud: for indeed, with good faith preserved, he will not furnish a lesser diligence than to his own affairs.

Dig. 16.3.33

Digest 16.3.33

Labeo 6 post. a iav. epit.

Labeo 6 of the Later Books, epitomized by Iavolenus.

Servus tuus pecuniam cum attio in sequestre deposuit apud maevium ea condicione, ut ea tibi redderetur, si tuam esse probasses, si minus, ut attio redderetur. posse dixi cum eo, apud quem deposita esset, incerti agere, id est ad exhibendum, et exhibitam vindicare, quia servus in deponendo tuum ius deterius facere non potuisset.

Your slave deposited money in sequestration together with Attius with Maevius on this condition, that it be returned to you if you proved it to be yours; if not, that it be returned to Attius. I said that you could bring against the one with whom it was deposited an action incerti, that is, for exhibiting (ad exhibendum), and, once exhibited, vindicate it, because the slave, in depositing, could not have made your right worse.

Dig. 16.3.34

Digest 16.3.34

Labeo 2 pith.

Labeo 2 Pithanon.

Potes agere depositi cum eo, qui tibi non aliter quam nummis a te acceptis depositum reddere voluerit, quamvis sine mora et incorruptum reddiderit.

You can bring an action of deposit against one who was willing to return the deposit to you only upon receiving coins from you, although he returned it without delay and uncorrupted.

Dig. 16.1.0. Ad senatus consultum velleianum.

Digest 16.1.0. On the senatus consultum Velleianum.

Dig. 16.1.1pr.

Digest 16.1.1, preface.

Paulus 30 ad ed.

Paulus Book 30 on the Edict.

Velleiano senatus consulto plenissime comprehensum est, ne pro ullo feminae intercederent.

In the Velleian senatorial decree it is most fully provided that women are not to intercede on behalf of anyone.

Dig. 16.1.1.1

Digest 16.1.1.1

Paulus 30 ad ed.

Paulus 30 on the Edict.

For just as by custom civil offices have been taken away from women, and most things by the law itself lack force, so much the more had that office to be taken from them, in which not only their labor and bare ministry would be involved, but also peril to the family estate.

Dig. 16.1.1.2

Digest 16.1.1.2

Paulus 30 ad ed.

Paulus 30 On the Edict.

Aequum autem visum est ita mulieri succurri, ut in veterem debitorem aut in eum, qui pro se constituisset mulierem ream, actio daretur: magis enim ille quam creditor mulierem decepit.

However, it seemed equitable that succor be given to the woman in such a way that an action be granted against the former debtor or against the one who had, in place of himself, constituted the woman defendant; for that man rather than the creditor deceived the woman.

Dig. 16.1.2pr.

Digest 16.1.2pr.

Ulpianus 29 ad ed.

Ulpian 29 on the Edict.

Et primo quidem temporibus divi augusti, mox deinde claudii edictis eorum erat interdictum, ne feminae pro viris suis intercederent.

And at first indeed, in the times of the deified Augustus, and soon thereafter under Claudius, by their edicts it was interdicted that women should not intercede on behalf of their husbands.

Dig. 16.1.2.1

Digest 16.1.2.1

Ulpianus 29 ad ed.

Ulpian 29 on the Edict.

Afterwards a decree of the senate was made, by which most fully assistance was afforded to all women. The words of which senatorial decree are these: “Whereas Marcus Silanus and Velleius Tutor, consuls, spoke concerning the obligations of women who became defendants (liable) on behalf of others, what ought to be done in that matter, in that matter they thus decreed: as regards sureties and the givings of mutuum (loans) for others, in which women have interceded, although previously the law seems to have been declared thus, that under that head no petition be made from them nor action be granted against them, since it is not equitable that they discharge virile offices and be bound by obligations of that kind, the senate is of the opinion that those to whom application in iure shall be made concerning that matter will act rightly and in due order, if they take care that in that matter the will of the senate be observed.”

Dig. 16.1.2.2

Digest 16.1.2.2

Ulpianus 29 ad ed.

Ulpian, 29 on the Edict.

Verba itaque senatus consulti excutiamus prius providentia amplissimi ordinis laudata, quia opem tulit mulieribus propter sexus inbecillitatem multis huiuscemodi casibus suppositis atque obiectis.

Therefore let us first examine the words of the senatorial decree, with the providence of the most distinguished order praised, because it brought aid to women on account of the weakness of the sex, many cases of this kind having been assumed and put forward.

Dig. 16.1.2.3

Digest 16.1.2.3

Ulpianus 29 ad ed.

Ulpian, 29 on the Edict.

But only thus does it finally come to their aid, if they have not conducted themselves craftily: for the deified Pius and Severus wrote this in a rescript. For it renders help to those deceived, not to those deceiving; and there is also such a Greek rescript of Severus: “the decree of the Senate does not assist women who deceive.” For the weakness of women, not their craftiness, has deserved assistance.

Dig. 16.1.2.4

Digest 16.1.2.4

Ulpianus 29 ad ed.

Ulpian 29 on the edict.

Omnis omnino obligatio senatus consulto velleiano comprehenditur, sive verbis sive re sive quocumque alio contractu intercesserint.

Every obligation whatsoever is comprehended by the Velleian senatus-consult, whether they have interceded by words, by thing, or by any other contract.

Dig. 16.1.2.5

Digest 16.1.2.5

Ulpianus 29 ad ed.

Ulpian 29 on the Edict.

But also if a woman has stood forth as the defensor of someone, without doubt she intercedes: for she takes upon herself an alien obligation, since from this matter she undergoes condemnation. accordingly a woman is permitted neither to defend a husband nor a son nor a father.

Dig. 16.1.3

Digest 16.1.3

Paulus 30 ad ed.

Paul 30 on the Edict.

Sed si eum defendat, qui damnatus regressum ad eam habeat, veluti cum venditorem hereditatis sibi venditae vel fideiussorem suum defendat, intercedere non videtur.

But if she defends one who, if condemned, would have a right of regress (recourse) against her—for instance, when she defends the seller of an inheritance sold to herself, or her own surety—she is not considered to be interceding.

Dig. 16.1.4pr.

Digest 16.1.4, preface.

Ulpianus 29 ad ed.

Ulpian 29 on the Edict.

Sed si ego cum muliere ab initio contraxerim, cum ignorarem cui haec factum vellet, non dubio senatus consultum cessare: et ita divus pius et imperator noster rescripserunt.

But if I have contracted with a woman from the outset, while I was ignorant for whom she wished this to be effected, there is no doubt that the senatus consultum is inapplicable; and thus the deified Pius and our emperor have rescripted.

Dig. 16.1.4.1

Digest 16.1.4.1

Ulpianus 29 ad ed.

Ulpian 29 On the Edict.

Accordingly, if, while she wishes Titius to receive a gift, she has taken money on loan from me and has donated it to Titius, the senatorial decree will not apply. But also, if, intending to make a gift to you, she has counted out coins to your creditor, it does not intervene; for the senate wished to succor a woman who is obligated, not one who is making a donation. This is because a woman more readily obligates herself than gives to someone.

Dig. 16.1.5

Digest 16.1.5

Gaius 9 ad ed. provinc.

Gaius 9 on the Provincial Edict.

Nor does it matter whether he counts out money for the sake of paying, or gives any of his own property in satisfaction: for even if he has sold his own thing, whether he pays on behalf of another with the price received, or delegates the buyer to another’s creditor, I do not think there is room for the senatus consultum.

Dig. 16.1.6

Digest 16.1.6

Ulpianus 29 ad ed.

Ulpian 29 on the Edict.

If sureties have intervened on behalf of the defensor of an absent son by mandate of his mother, the question is raised whether aid is given to them also by the senatus consultum. And Papinian says in the ninth book of the Questions that they will avail themselves of the exceptio; nor does it make much difference that they stood surety for a defensor, since they intervened in contemplation of the mother’s mandate. Clearly, he says, if the one who accepted them as sureties did not know that the mother had mandated them, the exceptio of the senatus consultum is to be repelled by a replicatio of dolus (fraud).

Dig. 16.1.7

Digest 16.1.7

Papinianus 9 quaest.

Papinianus 9 Questions.

Although, therefore, a surety, upon putting forward a replication of fraud, loses ^ should lose^ the defense of the exception, nevertheless he will have no replication against a woman, because she cannot plead ignorance of fact. But it will not be inequitable for an action of management of affairs to be given against the defender, because the cause of mandate is rendered void by a senatus consultum and the surety’s money is released.

Dig. 16.1.8pr.

Digest 16.1.8 preface.

Ulpianus 29 ad ed.

Ulpian, 29 on the Edict.

Although the giving of a pledge constitutes intercession, nevertheless Julianus in the twelfth book of the Digesta writes that the return of the pledge—if the woman creditor has released to the debtor the thing which she had received in pledge—is not intercession.

Dig. 16.1.8.1

Digest 16.1.8.1

Ulpianus 29 ad ed.

Ulpian 29 on the Edict.

If a woman has intervened with the guardians of her son, so that they would not sell off her estates, and has promised them indemnity, Papinian, in the ninth book of his Questions, does not think that she has interceded: for she has received no obligation of another, neither old nor new, but has herself made this obligation.

Dig. 16.1.8.2

Digest 16.1.8.2

Ulpianus 29 ad ed.

Ulpian 29 on the Edict.

If a woman has intervened with the first on behalf of the second, and then on behalf of the first with his creditor, Julian, in the twelfth book of the Digesta, writes that two intercessions have been made: one on behalf of the second with the first, the other on behalf of the first with his creditor; and therefore the obligation is restored to the first, and also lies against him. Marcellus, however, notes that there is some difference, whether this is done so that from the beginning the woman is substituted into another’s place and assumes the burden of the debtor from whom the creditor wished to transfer the obligation, or rather she is delegated as if a debtor; namely, that if she is delegated as if a debtor, there is one intercession. Accordingly, according to this distinction of his, in the first view, where she has been delegated as if a debtor, Marcellus would not grant to her the exception of the senatus consultum; but, having been condemned or even before condemnation, she will in any case be able to bring a condictio against the one by whom she was delegated, either for what is lacking to her, or, if it is not yet lacking, for liberation.

Dig. 16.1.8.3

Digest 16.1.8.3

Ulpianus 29 ad ed.

Ulpian, 29 on the Edict.

Sometimes even to a woman who has interceded a condictio is available—for instance, if, having been obligated contrary to the senatus‑consult, she has delegated/assigned her debtor; for here the condictio is available to her herself, just as she would sue by condictio if she had paid the money: for he also “pays” who delegates the debtor.

Dig. 16.1.8.4

Digest 16.1.8.4

Ulpianus 29 ad ed.

Ulpian, 29 on the Edict.

Sed si is, qui a muliere delegatus est, debitor eius non fuit, exceptione senatus consulti poterit uti, quemadmodum mulieris fideiussor.

But if he who has been delegated by a woman was not her debtor, he will be able to use the exception of the senatus consult, just as the woman’s surety.

Dig. 16.1.8.5

Digest 16.1.8.5

Ulpianus 29 ad ed.

Ulpian, 29 on the edict.

Plainly, if a woman, intending to intercede, has delegated her debtor, the senatorial decree ceases to apply, because even if she had paid out money, the senatorial decree would cease to apply: for a woman is relieved by the senatorial decree; she who has diminished is not restored.

Dig. 16.1.8.6

Digest 16.1.8.6

Ulpianus 29 ad ed.

Ulpian, 29 on the Edict.

Sed si eum delegaverit qui debitor eius non fuit, fraus senatus consulto facta videbitur et ideo exceptio datur.

But if he has delegated one who was not his debtor, it will appear that fraud has been committed upon the senatus consultum, and therefore an exception is given.

Dig. 16.1.8.7

Digest 16.1.8.7

Ulpianus 29 ad ed.

Ulpian 29 on the Edict.

Quotiens pro debitore intercesserit mulier, datur in eum pristina actio, etsi ille prius acceptilatione liberatus sit quam mulier intercesserit.

Whenever a woman has interceded on behalf of a debtor, the original action is granted against him, even if he had previously been released by acceptilation before the woman interceded.

Dig. 16.1.8.8

Digest 16.1.8.8

Ulpianus 29 ad ed.

Ulpian 29 on the Edict.

If it has been agreed with the debtor that he should provide an expromissor, and it has been entered to his account as received, and then he provides a woman who is fortified by the aid of the senatus consultum, a condictio can be brought against him as if he had not provided one: for what difference is there, whether he does not provide one or provides such a one? Therefore a useful action (actio utilis) will not be necessary, since the condictio lies.

Dig. 16.1.8.9

Digest 16.1.8.9

Ulpianus 29 ad ed.

Ulpian, 29 on the Edict.

Marcellus quoque scribit, si mulieri post intercessionem accepto tulerit creditor, nihilo minus restitutoriam actionem ei dari debere: inanem enim obligationem dimisit.

Marcellus also writes that, if the creditor, after the intercession, has entered it as received (acceptilated) from the woman, nonetheless a restitutory action ought to be given to her: for he released a void obligation.

Dig. 16.1.8.10

Digest 16.1.8.10

Ulpianus 29 ad ed.

Ulpian 29 on the Edict.

If a woman, after intercession, thus pays so that she cannot recover, the prior debtor rightly refuses the action. But the defendant is relieved: if the woman pays in such a way that she cannot recover; and likewise, when, as to that woman who would not have been able to recover if she had paid, the creditor has entered it as received (acceptilation), the defendant is similarly relieved.

Dig. 16.1.8.11

Digest 16.1.8.11

Ulpianus 29 ad ed.

Ulpian 29 on the edict.

Although the action is restored against all who have been released, nevertheless it is not restored to all. For instance, there were two co-stipulators: with one of them a woman interceded: to that one alone the obligation is restored, with whom she interceded.

Dig. 16.1.8.12

Digest 16.1.8.12

Ulpianus 29 ad ed.

Ulpian, 29 on the Edict.

If, in the case of a woman, the heir has turned out to be a creditor, it must be considered whether he may not make use of the restitutory remedy. And Julian says in book twelve that he will use the restitutory remedy nonetheless, not without reason, since he has succeeded with effect to one who was not obligated: finally, in the Falcidian calculation this debt will not be imputed.

Dig. 16.1.8.13

Digest 16.1.8.13

Ulpianus 29 ad ed.

Ulpian 29 on the Edict.

Plane si mihi proponas mulierem veteri debitori successisse, dicendum erit restitutoria eam conveniri posse, sed et directa actione: nihil enim eius interest, qua actione conveniatur.

Plainly, if you posit to me that a woman has succeeded to the old debtor, it must be said that she can be convened by the restitutory action, but also by the direct action: for it is of no interest to her by which action she is convened.

Dig. 16.1.8.14

Digest 16.1.8.14

Ulpianus 29 ad ed.

Ulpian 29 on the edict.

If, when I was about to contract with you, a woman has intervened, to the effect that I contract rather with herself, she is deemed to have interceded; in which case an action is given against you, which establishes rather than restores the obligation, so that you are bound in the same kind of obligation as the woman is bound: for example, if the woman is bound by stipulation, you too are proceeded against as if ex stipulatu.

Dig. 16.1.8.15

Digest 16.1.8.15

Ulpianus 29 ad ed.

Ulpian, 29 on the Edict.

This must be considered: if a woman has intervened on behalf of one who, if the contract had been made with him himself, would not be bound, whether by this action he ought to be held? For instance, if she has interceded for a ward, who is not obligated without the guardian’s authority. And I think the ward is not obligated, unless he has been made richer by this contract.

item si minor viginti quinque annis sit, pro quo mulier intercessit, in integrum restitutionem poterit implorare: vel filius contra senatus consultum contracturus est.

likewise, if he is under twenty-five years, for whom a woman has interceded, he will be able to implore in integrum restitution; or a son is about to contract contrary to the senatus consultum.

Dig. 16.1.9

Digest 16.1.9

Paulus 6 reg.

Paul 6 rules.

Sed si pro alieno servo intercedat, quemadmodum in patrem familias priorem reum restituitur actio, ita in dominum quoque restituenda erit.

But if one intercedes on behalf of another’s slave, just as the action is restored against the former defendant, the paterfamilias, so too it will have to be restored against the master.

Dig. 16.1.10

Digest 16.1.10

Ulpianus 29 ad ed.

Ulpian 29 on the Edict.

These actions, which are granted against those on whose behalf a woman has interceded, lie both to heirs and against heirs, and perpetually: for they have the pursuit of the thing (rei persecutio): they will also be given to other honorary successors and against them.

Dig. 16.1.11

Digest 16.1.11

Paulus 30 ad ed.

Paul 30 on the Edict.

Si mulier tamquam in usus suos pecuniam acceperit alii creditura, non est locus senatus consulto: alioquin nemo cum feminis contrahet, quia ignorari potest, quid acturae sint.

If a woman has received money as though for her own uses, intending to lend it to another, there is no place for the senatus consultum; otherwise no one would contract with women, because it can be unknown what they are going to do.

Dig. 16.1.12

Digest 16.1.12

Paulus 6 brev.

Paulus 6 Breviary.

Immo tunc locus est senatus consulto, cum scit creditor eam intercedere.

Nay rather, then there is place for the senatus consultum, when the creditor knows that she is interceding.

Dig. 16.1.13pr.

Digest 16.1.13pr.

Gaius 9 ad ed. provinc.

Gaius 9 on the provincial edict.

Sometimes, although a woman undertakes another’s obligation, she is not aided by this senatus‑consult: which happens when, though prima facie it is another’s, in truth she undertakes her own obligation. For example, if a female slave, on account of a paction for liberty, an expromissor having been provided, after manumission assumes that very liability which the expromissor would owe; or if she has bought an inheritance and transcribes the hereditary debt onto herself; or if she intercedes on behalf of her own fideiussor.

Dig. 16.1.13.1

Digest 16.1.13.1

Gaius 9 ad ed. provinc.

Gaius 9 on the provincial edict.

Concerning the pledges of the former debtor, the creditor has no need of a new action, since the quasi-Servian (which is also called the hypothecary) action is useful in these matters: because it is true that there has been an agreement about the pledges and that the money has not been paid.

Dig. 16.1.13.2

Digest 16.1.13.2

Gaius 9 ad ed. provinc.

Gaius 9 on the provincial edict.

If under a condition or to a day a woman has interceded for another, even with the condition pending, a restitutory action is to be granted to the creditor who is willing to proceed with the prior debtor: for what good is it to await the condition or the day, since that prior debtor is in such a case that in every way he himself ought to take upon himself the action?

Dig. 16.1.14

Digest 16.1.14

Iulianus 12 Dig.

Julian 12 Digest.

If a woman has interceded contrary to the senatorial decree, it is equitable that the action be restored not only against the original debtor, but also against his fideiussors: for since the woman’s person is withdrawn from the creditor by reason of the senatorial decree, the entire former cause must be restored intact.

Dig. 16.1.15

Digest 16.1.15

Iulianus 51 Dig.

Julianus 51 Digest.

If I pay to a woman what I owed to you and have stipulated from her that you will hold the matter ratified, and, if by chance you do not hold it ratified, I institute an action ex stipulatu, the exceptio of the senatus consultum that was made concerning the intercessions of women will not profit the woman: for she cannot be seen to refuse another’s obligation, since I remain bound by the debt, and she herself is acting for gain, and is rather compelled to return what she had received as not due than to pay on behalf of another.

Dig. 16.1.16pr.

Digest 16.1.16pr.

Iulianus 4 ad urs. ferocem.

Julian 4 to urs. ferox.

If a woman had interceded on my behalf with Titius contrary to the Senatus Consultum Velleianum, and I had paid that sum to the woman, and Titius were to demand that money from her, the exception of this senatus consultum will not be helpful to the woman; for she is not in peril of losing that money, since she already has it.

Dig. 16.1.16.1

Digest 16.1.16.1

Iulianus 4 ad urs. ferocem.

Julian 4 to Urseius Ferox.

If I had received a surety from that woman who had interceded contrary to the decree of the senate, Gaius Cassius replied that only then should an exception be given to the surety, if he had been asked by the woman. But Julian rightly thinks that an exception should be given to the surety even if he does not have an action of mandate against the woman, because the senate disapproves the entire obligation, and by the praetor the prior (principal) debtor is restored to the creditor.

Dig. 16.1.17pr.

Digest 16.1.17pr.

Africanus 4 quaest.

Africanus 4 questions.

A husband, for the sake of a donation, had assigned/sold a thing to his wife at a cheaper price and had delegated to his creditor the claim to that price. He replied that the sale was of no effect, and that, if the creditor demanded the money from the woman, a useful exception (defense) would lie, although the creditor had supposed that the woman had been her husband’s debtor; nor should that seem contrary to the approved rule that, if ever a woman borrowed for this purpose—that she might extend credit to her husband—the exception will not obstruct, if the creditor was ignorant for what cause the woman was borrowing, since indeed it makes a very great difference whether one from the outset contracts with the woman or transfers another’s obligation onto her: for in the latter case he ought to be more diligent.

Dig. 16.1.17.1

Digest 16.1.17.1

Africanus 4 quaest.

Africanus 4 Questions.

If a woman had said that a thing was obligated to her under the name of dowry, and a creditor, who accepted the same pledge, had taken care that the dowry-money be paid to her, the money loaned would also be owed to the woman: if the possessing creditor, against her bringing the Servian action, were to plead “that the pledge had not been given with her consent,” the woman’s replication under the senatus consultum would not be of benefit, unless the creditor had known that some other money too was owed to her.

Dig. 16.1.17.2

Digest 16.1.17.2

Africanus 4 quaest.

Africanus, 4 Questions.

A woman and Titius, when they borrowed for a common concern, became liable for the same sum: he said that it is not in every case that the woman appears to have interceded for her partner’s share. For if they borrowed for a cause on account of which, if the creditor had not furnished the money, the woman would have suffered the greater damage—for example, because the common insula (tenement) would not be shored up, or because the common fundus would be forfeited to the public—rather it is the case that there is no place for the senatus consultum. But if the borrowed money was received for some purchase, then she is seen to have made an intercession for a part, and therefore the creditor can demand only a part of the money from the woman; but if he should demand the whole, he is warded off by an exception as to the part.

Dig. 16.1.18

Digest 16.1.18

Paulus 8 ad plaut.

Paulus 8 on Plautius.

Idem et si pro debitore meo titius et mulier duo rei intercesserint.

Likewise, if on behalf of my debtor Titius and a woman—two persons—have interceded as sureties.

Dig. 16.1.19pr.

Digest 16.1.19, beginning.

Africanus 4 quaest.

Africanus 4 Questions.

The guardian of a ward had died, with Titius instituted as heir: as he was in doubt about entering upon the inheritance, because the guardianship was considered to have been ill-conducted, the ward’s mother, persuading him to enter at his own risk, led him to enter, and he took a stipulation to the effect that he should be held harmless (indemnified) on that account. If for that cause Titius had paid something to the ward and were to sue the mother, he denied that there was room for the defense of the senatus consultum, since it can scarcely be understood that anything had been an intercession with the same person on behalf of that very person.

Dig. 16.1.19.1

Digest 16.1.19.1

Africanus 4 quaest.

Africanus 4 Questions.

nor dissimilar to this proposition was one stirred from a fact: when a man of praetorian rank had died with two sons surviving, of whom one was underage and the other was the lawful tutor to his brother, and he wished to keep him from the paternal inheritance, then, at the mandate of the deceased’s wife, who was the mother of the ward, the ward having been kept back, he said that he alone had mixed himself with the inheritance: here Julian says that he replied similarly, that if, on that ground, the ward acting, he had suffered loss under that head, he is not hindered by the senatus consultum from preserving the matter against the woman.

Dig. 16.1.19.2

Digest 16.1.19.2

Africanus 4 quaest.

Africanus book 4 of Questions.

In the proposed case, this too must be handled: whether the one who, at the woman’s mandate, has entered upon the inheritance, if he suffers loss because the hereditary debtors were not solvent, has a place for the senatus consultum, as if the woman had in some manner taken upon herself their obligations. The better view, however, is that not even for this cause does the senatus consultum apply, since she was not of the mind to intercede for them, but rather to furnish, for the tutor, an heir indemnified against the ward and perhaps the other creditors.

Dig. 16.1.19.3

Digest 16.1.19.3

Africanus 4 quaest.

Africanus 4 Questions.

Finally, if we suppose that a woman, in the purchase of an inheritance, suffers loss on that account because the hereditary debtors are not solvent, I think there will be no doubt that there is no place for the senatorial decree, even if she has indeed advanced some amount to the creditors.

Dig. 16.1.19.4

Digest 16.1.19.4

Africanus 4 quaest.

Africanus book 4 of Questions.

What then, if, because Titius was therefore hesitating about entering upon the inheritance, on the ground that the debtors’ notes seemed insufficiently adequate, the woman repromised this very thing: that, to the extent that less could be recovered from any one of them, she herself would make it good? It is close to being intercession.

Dig. 16.1.19.5

Digest 16.1.19.5

Africanus 4 quaest.

Africanus 4 Questions.

When you had Titius as a debtor and a woman wished to intercede on his behalf, and you would not follow the woman’s name on account of the senatus consultum, the woman asked a loan of money from me, intending to pay you, and—while I was stipulating—she promised me, I being ignorant for what matter the money was being borrowed, and thus ordered me to pay it out to you. Then I, because I did not have cash at hand, promised you as you were stipulating. The question was raised, if I demand that money from the woman, whether the exceptio of the senatus consultum benefits her. He replied that it must be considered, for it is not without reason to say that I ought to be held in the position of one who has gone surety for a woman, so that just as to that person, although he was unaware that a woman was interceding, an exceptio is given against the creditor, lest an action of mandate lie against the woman, so to me also a useful exceptio be given against you and an action against the woman be denied to me, since this action would be to the woman’s peril. And this is to be said a little more readily if, before I have paid you the money, I have found out that she interceded; but if I have paid beforehand, it must be considered whether nevertheless an exceptio ought to be given to the woman against me, and whether I can bring a condictio against you for the money, or rather the matter should be treated just as if at the beginning I had lent the money to the woman and in turn you had gone into credit to me.

which indeed he thought ought rather to be said, so that in this way there is no place for the senatus consultum: just as also, when a woman delegates her debtor, there is no place for intercession. He says that these are not rightly compared thereafter, since, when the delegation of the debtor has been made, the woman is not bound, but in the case proposed she has transferred another’s obligation onto herself, which assuredly the Senate did not wish to be done.

Dig. 16.1.20

Digest 16.1.20

Africanus 8 quaest.

Africanus 8 Questions.

Si pro uno reo intercessit mulier, adversus utrumque restituitur actio creditori.

If a woman has interceded for one debtor, the action is restored to the creditor against both.

Dig. 16.1.21pr.

Digest 16.1.21pr.

Callistratus 3 inst.

Callistratus Institutes 3.

Si pro aliquo mulier intercesserit, sed in rem eius quod acceptum est versaretur, exceptio senatus consulti locum non habet, quia non fit pauperior.

If, on behalf of someone, a woman has interceded, but what was received was applied to her estate, the exception of the senatus consultum has no place, because she does not become poorer.

Dig. 16.1.21.1

Digest 16.1.21.1

Callistratus 3 inst.

Callistratus 3 institutes.

Item si quid liberaliter fecerit, veluti ne iudicatus pater eius propter solutionem vexetur, non erit tuta senatus consulto: oneribus enim earum senatus succurrit.

Likewise, if she has done anything liberally—such as that her adjudged father not be vexed on account of the payment—it will not be secure by the senatus consultum; for the Senate comes to the aid with respect to their burdens.

Dig. 16.1.22

Digest 16.1.22

Paulus 6 reg.

Paulus 6 rules.

If I have given money to a woman, that she may pay it to my creditor or expromise it, if she has expromised, Pomponius writes that the senatorial decree has no place, because, being bound by the action of mandate, she seems to be bound in her own interest.

Dig. 16.1.23

Digest 16.1.23

Paulus l.S. ad sc velle.

Paulus in the single book on the senatus consultum Velleianum.

If a woman, when interrogated in court, has answered that she is heir, if she answered knowing that she is not heir, she is deemed not to have interceded at all, because she deceived; but if she supposed herself to be heir and, under that title, being deceived, answered, most have thought that an action is indeed given against her, but that she is aided by the exception of the Senate’s decree.

Dig. 16.1.24pr.

Digest 16.1.24pr.

Paulus l.S. de intercess. femina

Paulus in the single book On the Intercession of Women

Debitrix mulier a creditore delegata pro eo cui delegata est promisit: non utetur exceptione.

A female debtor, delegated by the creditor, promised on behalf of the one to whom she was delegated: she will not make use of the exception.

Dig. 16.1.24.1

Digest 16.1.24.1

Paulus l.S. de intercess. femina

Paulus in the single book On the Intercession of Women

Sed si pecuniam promisit, ne delegetur, intercessisse videtur.

But if he promised money, so that she not be delegated, he seems to have interceded.

Dig. 16.1.24.2

Digest 16.1.24.2

Paulus l.S. de intercess. femina

Paulus, in the single book On a Woman’s Intercession

Si senatus consulti beneficium intervenit, utrum statim cum mulier intercesserit actio in priorem debitorem competit, an si mulier solutum condicat? puto statim, et non exspectandam solutionem.

If the benefit of the senatus consultum intervenes, does the action immediately lie against the prior debtor when the woman has interceded, or only if the woman should bring a condictio for what has been paid? I think immediately, and that payment is not to be awaited.

Dig. 16.1.24.3

Digest 16.1.24.3

Paulus l.S. de intercess. femina

Paulus in the single book On a Woman’s Intercession

If, on behalf of one who was held by a temporal action, a woman has interceded, the temporal action shall be restored; yet in such a way that, from the preceding cause, the continuous periods are counted after the restitution, although it had become available immediately when the woman interceded.

Dig. 16.1.25pr.

Digest 16.1.25pr.

Modestinus l.S. de heuremat.

Modestinus in the single book on the heurema.

Si domina servo suo credi iusserit, actione honoraria tenebitur.

If a mistress has ordered that credit be given to her slave, she will be liable under an honorary action.

Dig. 16.1.25.1

Digest 16.1.25.1

Modestinus l.S. de heuremat.

Modestinus in the singular book On Discoveries.

Quod si pro eo fideiusserit, exceptione senatus consulti velleiani iudicio conventa adversus creditorem tueri se poterit, nisi pro suo negotio hoc fecerit.

But if she has stood surety for him, when sued she will be able to defend herself against the creditor by the exception of the Velleian senatus consultum, unless she did this for her own business.

Dig. 16.1.26

Digest 16.1.26

Ulpianus 37 ad ed.

Ulpian 37 on the Edict.

Si mulier intercedendi animo servum alienum suum esse responderit, quasi intercesserit auxilio senatus consulti utetur. plane si pro bona fide serviente sibi responderit, non videtur intercessisse.

If a woman, with the intention of interceding, has responded that a slave belonging to another is her own, she will use the aid of the senatus consultum as though she had interceded. Clearly, if she has responded on behalf of one serving her in good faith, she is not considered to have interceded.

Dig. 16.1.27pr.

Digest 16.1.27 pr.

Papinianus 3 resp.

Papinian, Responses, Book 3.

Bona fide personam mulieris in contrahendo secutus ob ea, quae inter virum et uxorem accepta pecunia gesta sunt, exceptione senatus consulti non summovetur.

One who, in good faith, in contracting, relied upon the persona of the woman is not removed by the exception of the senatus consultum on account of those things which, between husband and wife, were transacted with money received.

Dig. 16.1.27.1

Digest 16.1.27.1

Papinianus 3 resp.

Papinianus Responses, book 3.

When slaves put in charge of a business, contracting with another, assume the persona of a woman as suitable, the defense (exceptio) of the senatus consultum removes the master: nor does the master’s case seem to be made worse through the slave, but rather that nothing has been gained for the master, no more than if the slave had bought a litigious estate or a free man.

Dig. 16.1.27.2

Digest 16.1.27.2

Papinianus 3 resp.

Papinian 3 responses.

A wife delegated her (female) debtor to her husband, so that the husband would pay her creditor the money: if she has pledged her own credit on behalf of the one whom she delegated with her husband, the exception of the senatus consultum will have no place, because the woman managed her own business.

Dig. 16.1.28pr.

Digest 16.1.28, at the beginning.

Scaevola 1 resp.

Scaevola 1 responses.

Seia bought slaves and received money by way of a loan, with her husband as surety, and she paid it to the seller: afterwards the husband, dying insolvent, in fraud of the creditor provided in his testament that he owed that whole sum: the question is asked whether the woman would be seen to have interceded. I responded, on the basis of what was set forth, that she had not interceded.

Dig. 16.1.28.1

Digest 16.1.28.1

Scaevola 1 resp.

Scaevola Responses, Book 1.

The husband pledged his wife’s farm to Sempronius on account of a lease: soon the woman, from Numerius, on her own credit, having received money on loan under the obligation of the same farm, immediately paid Sempronius on behalf of her husband: it was asked whether she was bound contrary to the senatus consultum. I replied that, if Numerius had known that she was interceding, there would be room for the senatus consultum about which inquiry was being made.

Dig. 16.1.29pr.

Digest 16.1.29pr.

Paulus 16 resp.

Paulus 16 Responses.

Someone wished to give to the heirs of lucius titius money by way of a mutuum and to contract with them; but since he held their means suspect, he preferred to give the money to the testator’s wife and to receive a pledge from her. The woman gave the same money to the heirs and received a pledge from them. I ask whether she appears to have interceded, and whether the pledges which she herself received are held to the creditor. Paulus replied: if the creditor, when he wished to contract with the heirs of lucius titius, avoided them and rather chose the woman as the party liable, then, as to her person, the senatus consultum that was made concerning intercessions has application, and the pledges given by her are not binding. But the things which the woman received in pledge from those for whom she was interceding are not obligated to the woman’s creditor.

sed non sine ratione praetorem facturum, si non tantum in persona subducta muliere in principales debitores dederit actionem, sed etiam in res, quae mulieri obligatae sunt.

but the praetor would not be acting without reason, if he were to grant an action not only in personam, the woman’s person having been withdrawn, against the principal debtors, but also upon the things that are obligated to the woman.

Dig. 16.1.29.1

Digest 16.1.29.1

Paulus 16 resp.

Paulus 16 responses.

Paulus respondit ea, quae in fraudem senatus consulti, quod de intercessione feminarum factum est, excogitata probari possunt, rata haberi non oportere.

Paulus answered that those things which can be proved to have been devised in fraud of the senatus-consult that was made concerning the intercession of women ought not to be held valid.

Dig. 16.1.30pr.

Digest 16.1.30, preface.

Paulus 2 sent.

Paulus 2 sentences.

If, with an intention of deceiving, or when she knew that she was not bound, a woman has interceded on behalf of someone, the exception of the senatus consultum is not granted to her; for the most august order does not exclude the action which lies on account of the woman’s fraud.

Dig. 16.1.30.1

Digest 16.1.30.1

Paulus 2 sent.

Paulus Book 2 of the Sentences.

Procurator si mandatu mulieris pro alio intercesserit, exceptione senatus consulti velleiani adiuvatur, ne alias actio intercidat.

If a procurator, at the mandate of a woman, has interceded on behalf of another, he is aided by the exception of the Senatus Consultum Velleianum, lest otherwise the action lapse.

Dig. 16.1.31

Digest 16.1.31

Paulus 1 ad ner.

Paulus 1 on Neratius.

Paulus: si mulier quod ex intercessione solvit nolit repetere, sed mandati agere et cavere velit de indemnitate reo, audienda est.

Paulus: if a woman, who has paid on account of an intercession, does not wish to seek repetition, but wishes to bring the action of mandate and to take security from the defendant for indemnity, she is to be heard.

Dig. 16.1.32pr.

Digest 16.1.32, preface.

Pomponius 1 sen. consult.

Pomponius 1 on senatus consults.

If a woman should enter upon someone’s inheritance in order to assume his debt, scarcely is it the case that she ought to be succored, unless this was contrived in fraud of the creditors; for a woman is not to be regarded in all respects as standing in the place of one under twenty-five years who has been overreached.

Dig. 16.1.32.1

Digest 16.1.32.1

Pomponius 1 sen. consult.

Pomponius 1 on senatorial decrees.

If a woman wishes to recover, by intercession, a thing that she had given in pledge from herself, she also recovers the fruits free; and, if the thing has been made worse, let it on that account be assessed the more. But if the creditor who received the pledge by intercession has sold it to another, the opinion is sound of those who think that an action should be granted to her even against a purchaser in good faith, lest the purchaser be in a better condition than the seller was.

Dig. 16.1.32.2

Digest 16.1.32.2

Pomponius 1 sen. consult.

Pomponius 1 On the Senatus Consulta.

Likewise, if a woman has sold and delivered an estate to her husband’s creditor on this condition, that the buyer should carry back the accepted money to the husband, and she vindicates this estate, indeed the exception is opposed to her of “a thing bought and delivered”; but a replication will be made by the woman: " or if that sale was made contrary to the senatorial decree"; and this holds, whether the creditor himself has bought or has interposed another, in order that by that device the woman be deprived of her property. The same is the case also if she delivered her property not for her husband, but for another debtor.

Dig. 16.1.32.3

Digest 16.1.32.3

Pomponius 1 sen. consult.

Pomponius 1 Senatus-Consults.

If a woman, so that she herself might not intercede, were to mandate another to do it, is there room, in the person of the one who would do this at the woman’s request, for this senatorial decree? For the whole tenor of the senatorial decree looks to no action being granted against the woman herself. And I think the matter is to be distinguished thus: if indeed the creditor, to whom I obligated myself at the woman’s mandating, acted in fraud of the senatorial decree—so that she herself might not intervene contrary to the decree, but would instead put forward another—he is to be barred by the defense of fraud upon the senatorial decree; but if he was ignorant of it, while I knew, then I, bringing an action on mandate against the woman, must be excluded, yet I am held liable to the creditor.

Dig. 16.1.32.4

Digest 16.1.32.4

Pomponius 1 sen. consult.

Pomponius 1 senatus consulta.

If a woman is prepared to accept judgment in place of him for whom she has interceded, so that an action not be granted against the former debtor: since she can oppose the senatusconsult exception, she ought to give security that she will not use the exception, and thus go to the judge.

Dig. 16.1.32.5

Digest 16.1.32.5

Pomponius 1 sen. consult.

Pomponius Book 1, On Senatorial Decrees.

Intercedere mulierem intellegendum est etiam pro eo, qui obligari non possit, veluti si pro servo alieno intercedit: sed rescissa intercessione in dominum restituenda est actio.

A woman’s interceding is to be understood as extending even for one who cannot be obligated, for instance if she intercedes for another’s slave: but, the intercession having been rescinded, the action is to be restored against the master.

Dig. 16.2.0. De compensationibus.

Dig. 16.2.0. On set-offs.

Dig. 16.2.1

Digest 16.2.1

Modestinus 6 pand.

Modestinus book 6 of the Pandects.

Compensatio est debiti et crediti inter se contributio.

Compensation is the bringing-together of debt and credit with one another.

Dig. 16.2.2

Digest 16.2.2

Iulianus 90 Dig.

Julian book 90 of the Digesta.

Unusquisque creditorem suum eundemque debitorem petentem summovet, si paratus est compensare.

Each person wards off his creditor—the selfsame man being his debtor—when he is suing, if he is ready to compensate (set off).

Dig. 16.2.3

Digest 16.2.3

Pomponius 25 ad sab.

Pomponius, 25 on Sabinus.

Ideo compensatio necessaria est, quia interest nostra potius non solvere quam solutum repetere.

Therefore compensation is necessary, because it is in our interest rather not to pay than to recover what has been paid.

Dig. 16.2.4

Digest 16.2.4

Paulus 3 ad sab.

Paulus 3 on Sabinus.

It is true, as both Neratius approved and Pomponius says, that by the law itself the surety owes so much the less from any contract as the defendant can retain by compensation (set-off): for just as, when I seek the whole from the defendant, I seek amiss, so too the surety is not held by the law itself for a greater amount than the defendant can be condemned.

Dig. 16.2.5

Digest 16.2.5

Gaius 9 ad ed. provinc.

Gaius 9 on the provincial edict.

Si quid a fideiussore petetur, aequissimum est eligere fideiussorem, quod ipsi an quod reo debetur, compensare malit: sed et si utrumque velit compensare, audiendus est.

If anything is demanded from a surety, it is most equitable that the surety be allowed to choose whether he prefers to set off what is owed to himself or what is owed to the principal (defendant); but even if he wishes to set off both, he is to be heard.

Dig. 16.2.6

Digest 16.2.6

Ulpianus 30 ad sab.

Ulpian 30 on Sabinus.

Etiam quod natura debetur, venit in compensationem.

Even that which is owed by nature comes into compensation.

Dig. 16.2.7pr.

Digest 16.2.7pr.

Ulpianus 28 ad ed.

Ulpian 28 on the Edict.

Quod in diem debetur, non compensabitur, antequam dies venit, quamquam dari oporteat.

What is owed to a fixed day is not compensated by set-off before the day comes, although it ought to be given.

Dig. 16.2.7.1

Digest 16.2.7.1

Ulpianus 28 ad ed.

Ulpian 28 on the Edict.

If the judge has not had regard to the rationale of compensation, the petition remains safe; for indeed the exception of res judicata cannot be opposed. I will say otherwise, if he disapproved the pensation as though the debt did not exist: then indeed the exception of res judicata will harm me.

Dig. 16.2.8

Digest 16.2.8

Gaius 9 ad ed. provinc.

Gaius 9 on the Provincial Edict.

In compensationem etiam id deducitur, quo nomine cum actore lis contestata est, ne diligentior quisque deterioris condicionis habeatur, si compensatio ei denegetur.

In set-off there is also deducted that which, under which head the suit has been contested with the plaintiff, lest any more diligent person be held in a worse condition, if set-off be denied to him.

Dig. 16.2.9pr.

Digest 16.2.9 preface.

Paulus 32 ad ed.

Paulus 32 on the Edict.

Si cum filio familias aut servo contracta sit societas et agat dominus vel pater, solidum per compensationem servamus, quamvis, si ageremus, dumtaxat de peculio praestaretur.

If a partnership has been contracted with a son-in-power or with a slave, and the master or the father brings suit, we maintain the solidum by way of compensation, although, if we were suing, it would be provided only out of the peculium.

Dig. 16.2.9.1

Digest 16.2.9.1

Paulus 32 ad ed.

Paulus 32 on the Edict.

But if the matter is conducted with a son under paternal power (filius familias), the question is whether the son can compensate (set off) what is owed to the father; and it is rather to be admitted, because it is one contract, but with the condition that he give security (caution) that his father will hold it ratified—that is, will not exact what he has compensated.

Dig. 16.2.10pr.

Digest 16.2.10, preface.

Ulpianus 63 ad ed.

Ulpian, 63 on the Edict.

If both partners have applied equal negligence to the partnership, it must be said that we cease to be mutually obligated, by the law itself, compensation for the negligence having been made. similarly it is established that, if one has received something from the common property, and the other has exhibited such negligence as is assessed at the same amount, compensation is deemed to have been made and, by the law itself, a mutual release.

Dig. 16.2.10.1

Digest 16.2.10.1

Ulpianus 63 ad ed.

Ulpian, 63 on the edict.

Si quis igitur compensare potens solverit, condicere poterit quasi indebito soluto.

If, therefore, someone able to compensate has paid, he will be able to bring a condictio as if an undue payment had been made.

Dig. 16.2.10.2

Digest 16.2.10.2

Ulpianus 63 ad ed.

Ulpian 63 on the Edict.

Whenever an action arises from a maleficium—for instance from a cause of theft and of other maleficia—if the matter is pursued pecuniarily, compensation (set-off) has a place; the same is true also if a condictio is brought from a cause of theft. But even one who is convened by a noxal action can oppose compensation.

Dig. 16.2.10.3

Digest 16.2.10.3

Ulpianus 63 ad ed.

Ulpian, 63 on the Edict.

In stipulations too which have the likeness of actions, that is, praetorian ones, set-off (compensation) has a place; and, according to Julian, both in the stipulation itself and in the action ex stipulatu set-off may be pleaded.

Dig. 16.2.11

Digest 16.2.11

Ulpianus 32 ad ed.

Ulpian Book 32 on the Edict.

Cum alter alteri pecuniam sine usuris, alter usurariam debet, constitutum est a divo severo concurrentis apud utrumque quantitatis usuras non esse praestandas.

When one owes the other money without interest, and the other owes an interest‑bearing sum, it has been established by the deified Severus that interest is not to be paid on the amount concurrent between them.

Dig. 16.2.12

Digest 16.2.12

Ulpianus 64 ad ed.

Ulpian 64 on the Edict.

The same law is established not only in private matters, but even in the case of the fisc. But even if on each side the money is usurious (interest-bearing), though the usury be different, set-off nonetheless has place for that which is mutually owed.

Dig. 16.2.13

Digest 16.2.13

Ulpianus 66 ad ed.

Ulpian 66 on the Edict.

Quod labeo ait, non est sine ratione, ut, si cui petitioni specialiter destinata est compensatio, in ceteris non obiciatur.

What Labeo says is not without reason: namely, that if compensation (set-off) has been specially destined for a particular claim, it is not to be pleaded against the others.

Dig. 16.2.14

Digest 16.2.14

Iavolenus 15 ex cass.

Iavolenus 15 from Cassius.

Quaecumque per exceptionem peremi possunt, in compensationem non veniunt.

Whatever things can be extinguished by an exception do not come into compensation (set-off).

Dig. 16.2.15

Digest 16.2.15

Iavolenus 2 epist.

Javolenus 2 epistles.

I stipulated that money be given to Titius in a fixed place: he demands from me the money which I owe him: I ask whether this also should be set off, how much it was to my interest that it be given in a fixed place. He responded: if Titius sues, that money also, which he promised in a fixed place, ought to be deducted in compensation, but with its own ground—that is, that account be taken of how much it concerned Titius that the money be given in the place agreed.

Dig. 16.2.16pr.

Digest 16.2.16, beginning.

Papinianus 3 quaest.

Papinian, Questions 3.

Cum militi castrensium bonorum alius, ceterorum alius heres exstitit et debitor alteri heredum obligatus vult compensare quod ab alio debetur, non audietur.

When, for a soldier, one heir has arisen for the castrensian goods and another for the rest, and a debtor, obliged to one of the heirs, wishes to compensate by set-off what is owed to the other, he will not be heard.

Dig. 16.2.16.1

Digest 16.2.16.1

Papinianus 3 quaest.

Papinian, 3 Questions.

When, within the day granted for execution upon the adjudged sum, the judgment‑debtor Titius brings suit against that same Titius, who likewise had previously been adjudged to him, set‑off will be admitted: for it is one thing that the day of the obligation has not come, another that, by grace of humanity, a time for payment is indulged.

Dig. 16.2.17

Digest 16.2.17

Papinianus 1 resp.

Papinianus 1 responses.

Ideo condemnatus, quod artiorem annonam aedilitatis tempore praebuit, frumentariae pecuniae debitor non videbitur, et ideo compensationem habebit.

Therefore, one condemned because he provided a tighter grain-supply (annona) at the time of his aedileship will not be deemed a debtor of the frumentary money, and therefore will have compensation (set-off).

Dig. 16.2.18pr.

Digest 16.2.18pr.

Papinianus 3 resp.

Papinianus 3 responses.

In rem suam procurator datus post litis contestationem, si vice mutua conveniatur, aequitate compensationis utetur.

A procurator appointed in rem suam after the contestation of the suit, if he is proceeded against in a reciprocal action, will make use of the equity of compensation (set-off).

Dig. 16.2.18.1

Digest 16.2.18.1

Papinianus 3 resp.

Papinianus 3 responses.

Creditor compensare non cogitur quod alii quam debitori suo debet, quamvis creditor eius pro eo, qui convenitur ob debitum proprium, velit compensare.

A creditor is not compelled to compensate by set-off what he owes to someone other than his own debtor, although the creditor of that person wishes to set off on behalf of the one who is sued for his own debt.

Dig. 16.2.19

Digest 16.2.19

Papinianus 11 resp.

Papinian, 11 Responses.

If a debtor pays public money to a public slave without the consent of those to whom the debt could properly be paid, the original obligation will remain; but a set-off will be granted to him up to the limit of the peculium that the public slave will have.

Dig. 16.2.20

Digest 16.2.20

Papinianus 13 resp.

Papinian 13 Responses.

Ob negotium copiarum expeditionis tempore mandatum curatorem condemnatum pecuniam iure compensationis retinere non placuit, quoniam ea non compensantur.

On account of a business of the troops mandated in time of an expedition, it did not seem proper that the curator, having been condemned, retain the money by the right of compensation (set-off), since such things are not compensated.

Dig. 16.2.21

Digest 16.2.21

Paulus 1 quaest.

Paulus 1 Questions.

Posteaquam placuit inter omnes id quod invicem debetur ipso iure compensari, si procurator absentis conveniatur, non debebit de rato cavere, quia nihil compensat, sed ab initio minus ab eo petitur.

After it was agreed among all that that which is mutually owed is compensated by the law itself, if the procurator of an absent person is sued, he will not have to give de rato security, because he compensates nothing, but from the beginning less is demanded from him.

Dig. 16.2.22

Digest 16.2.22

Scaevola 2 quaest.

Scaevola 2 questions.

Si debeas decem aut hominem, utrum adversarius volet, ita compensatio huius debiti admittitur, si adversarius palam dixisset, utrum voluisset.

If you should owe ten or a man (i.e., a slave), whichever the adversary chooses, thus the compensation (set-off) of this debt is admitted, if the adversary had openly stated which he wished.

Dig. 16.2.23

Digest 16.2.23

Paulus 9 resp.

Paulus 9 responses.

Id quod pupillorum nomine debetur si tutor petat, non posse compensationem obici eius pecuniae, quam ipse tutor suo nomine adversario debet.

What is owed in the name of the wards, if the tutor (guardian) demands it, cannot have compensation (set-off) opposed on account of that money which the tutor himself, in his own name, owes to the adversary.

Dig. 16.2.24

Digest 16.2.24

Paulus 3 decr.

Paulus book 3 of the Decrees.

Iussit imperator audiri adprobantem sibi a fisco deberi, quod ipse convenitur.

The emperor ordered that one proving that the fisc is indebted to him in respect of that for which he himself is sued be heard.

Dig. 16.3.0. Depositi vel contra.

Digest 16.3.0. Deposit or the contrary action.

Dig. 16.3.1pr.

Digest 16.3.1, pr.

Ulpianus 30 ad ed.

Ulpian, 30 on the Edict.

Depositum est, quod custodiendum alicui datum est, dictum ex eo quod ponitur: praepositio enim de auget depositum, ut ostendat totum fidei eius commissum, quod ad custodiam rei pertinet.

A deposit is that which has been given to someone for safekeeping, so called from the fact that it is put down; for the preposition de augments positum into depositum, to show that the whole is committed to his good faith, in what pertains to the custody of the thing.

Dig. 16.3.1.1

Digest 16.3.1.1

Ulpianus 30 ad ed.

Ulpian 30 on the edict.

The praetor says: " for a deposit which has not been made by reason of tumult, conflagration, ruin, or shipwreck, I will grant an action for the single value; but for those matters which have been comprehended above, against the person himself for the double; against his heir, for what will be said to have been done by the malicious fraud of him who has died, for the single; for what is his own, for the double, I will grant an action. "

Dig. 16.3.1.2

Digest 16.3.1.2

Ulpianus 30 ad ed.

Ulpian Book 30 on the Edict.

Merito has causas deponendi separavit praetor, quae continent fortuitam causam depositionis ex necessitate descendentem, non ex voluntate proficiscentem.

With good reason the praetor separated these causes of depositing, which contain a fortuitous cause of deposition descending from necessity, not proceeding from will.

Dig. 16.3.1.3

Digest 16.3.1.3

Ulpianus 30 ad ed.

Ulpian 30 on the Edict.

Eum tamen deponere tumultus vel incendii vel ceterarum causarum gratia intellegendum est, qui nullam aliam causam deponendi habet quam imminens ex causis supra scriptis periculum.

Nevertheless, it is to be understood that he deposits by reason of tumult or fire or other causes, who has no other cause of depositing than the danger imminent from the above-written causes.

Dig. 16.3.1.4

Digest 16.3.1.4

Ulpianus 30 ad ed.

Ulpian, 30 on the edict.

However, this separation of causes has a just rationale: for when someone has chosen to trust and the deposit is not returned, he ought to be content with the simple amount; but when he deposits with necessity being present, the charge of perfidy increases, and the public utility is to be enforced for the sake of vindicating the commonwealth: for it is unprofitable in cases of this sort to break faith.

Dig. 16.3.1.5

Digest 16.3.1.5

Ulpianus 30 ad ed.

Ulpian 30 on the Edict.

Quae depositis rebus accedunt, non sunt deposita, ut puta si homo vestitus deponatur, vestis enim non est deposita: nec si equus cum capistro, nam solus equus depositus est.

Things which accede to deposited items are not deposited, for instance if a clothed man is deposited, the garment is not deposited: nor if a horse with a halter, for only the horse is deposited.

Dig. 16.3.1.6

Digest 16.3.1.6

Ulpianus 30 ad ed.

Ulpian 30 on the edict.

Si convenit, ut in deposito et culpa praestetur, rata est conventio: contractus enim legem ex conventione accipiunt.

If it is agreed that, in a deposit, fault too shall be answered for, the agreement is valid: for contracts receive their law from agreement.

Dig. 16.3.1.7

Digest 16.3.1.7

Ulpianus 30 ad ed.

Ulpian 30 on the Edict.

Illud non probabis, dolum non esse praestandum si convenerit: nam haec conventio contra bonam fidem contraque bonos mores est et ideo nec sequenda est.

You will not approve this—that fraud need not be answered for if it has been agreed; for this convention is against good faith and against good morals, and therefore is not to be followed.

Dig. 16.3.1.8

Digest 16.3.1.8

Ulpianus 30 ad ed.

Ulpian, 30 on the Edict.

If garments given to the bathkeeper to be kept have perished, if indeed he received no fee for keeping the garments, I think he is held on account of deposit and ought to make good only for deceit; but if he received [a fee], then under hire.

Dig. 16.3.1.9

Digest 16.3.1.9

Ulpianus 30 ad ed.

Ulpian 30 on the Edict.

If someone has consigned a slave to be kept under custody, say, into a bakehouse, if indeed a wage intervenes for the custody, I think there is an action against the bakehouse-keeper ex conducto; but if I was receiving a wage myself for this slave whom he was receiving into the bakehouse, I can sue ex locato. But if the services of that slave together with the custody were being reckoned, a kind of locatio–conductio arises; yet, since money is not being given, an action praescriptis verbis is given. If, however, he provided nothing other than rations and nothing was agreed concerning the works, the action is of deposit (depositi actio).

Dig. 16.3.1.10

Digest 16.3.1.10

Ulpianus 30 ad ed.

Ulpian 30 on the Edict.

In letting and hiring and in the business in consequence of which we said that an action is to be given with prescribed words, they who received a slave will be bound to make good fraud and fault; but if only provisions, fraud only. We shall follow, however, as Pomponius says, also what they had set forth by notice or what was agreed, provided that we know this: even if anything was set forth by notice, nevertheless those who received will make good fraud, which alone comes in with a deposit.

Dig. 16.3.1.11

Digest 16.3.1.11

Ulpianus 30 ad ed.

Ulpian 30 On the Edict.

If I should ask you to carry my property to titium, so that he may keep it, by what action can I proceed against you? the question is discussed by pomponium. And he thinks: against you, the action is on mandate; but against the one who has received those things, on deposit. But if he has received them in your name, you indeed are liable to me on mandate, and he to you on deposit; which action you will provide to me when convened by the action of mandate.

Dig. 16.3.1.12

Digest 16.3.1.12

Ulpianus 30 ad ed.

Ulpian 30 on the Edict.

But if I gave the thing to you, to the effect that, if Titius did not receive the thing, you should keep it in custody, and he did not receive it, it must be considered whether there is only the action of deposit, or also that of mandate. And Pomponius is in doubt; however, I think the action is of mandate, because the mandate was fuller, also having the rule/obligation of custody.

Dig. 16.3.1.13

Digest 16.3.1.13

Ulpianus 30 ad ed.

Ulpian 30 on the Edict.

The same Pomponius inquires, if I have given you a mandate that you guard a thing received from someone in my name, and you have done so, whether you are held under mandate or deposit. And he more approves that the action is of mandate, because here the initial contract is the mandate.

Dig. 16.3.1.14

Digest 16.3.1.14

Ulpianus 30 ad ed.

Ulpian 30 on the Edict.

The same Pomponius inquires whether, if when I was willing to deposit with you, you ordered me to deposit with your freedman, I can proceed with you by an action of deposit. And he says: if I deposited in your name—that is, as though you were to be the custodian—there is for me an action of deposit with you; but if you merely advised me to deposit rather with him, there is no action with you, while with him there is an action of deposit; nor are you bound on mandate, because I managed my own affair. But if you gave me a mandate that I deposit with him at your risk, I do not see why there should not be an action of mandate.

Plainly, if you have gone surety for him, Labeo says the surety is in every way bound, not only if the one who received the deposit acted with dolus, but even if he did not, yet the thing is with him. For what if the person with whom the deposit is were insane, or were a pupillus (ward), or if neither an heir nor a possessor of the goods (bonorum possessor) nor his successor existed? He will therefore be held to render that which is wont to be rendered by the action of deposit.

Dig. 16.3.1.15

Digest 16.3.1.15

Ulpianus 30 ad ed.

Ulpian, 30 on the edict.

It is asked whether the action of deposit is given against a ward, with whom a deposit was made without the tutor’s authority. But it ought to be held that, if you have deposited with one already capable of fraudulent malice (dolus malus), suit can be brought if he has committed fraud: for also, to the extent that he has been made more wealthy (enriched), an action is given against him even if fraud did not intervene.

Dig. 16.3.1.16

Digest 16.3.1.16

Ulpianus 30 ad ed.

Ulpian 30 on the Edict.

Si res deposita deterior reddatur, quasi non reddita agi depositi potest: cum enim deterior redditur, potest dici dolo malo redditam non esse.

If a deposited thing is returned in a deteriorated state, the action of deposit can be brought as though it had not been returned: for when it is returned in worse condition, it can be said that, by malicious fraud, it has not been returned.

Dig. 16.3.1.17

Digest 16.3.1.17

Ulpianus 30 ad ed.

Ulpian, book 30 on the Edict

Si servus meus deposuerit, nihilo minus depositi habebo actionem.

If my slave has deposited, nonetheless I shall have the action of deposit.

Dig. 16.3.1.18

Digest 16.3.1.18

Ulpianus 30 ad ed.

Ulpian 30 on the Edict.

If I shall have deposited with a slave and proceed against him when manumitted, Marcellus says the action does not lie, although we are wont to say that one ought to be held even for fraud committed in slavery, because both delicts and noxal liabilities follow the person: therefore, one must have recourse to other competent actions.

Dig. 16.3.1.19

Digest 16.3.1.19

Ulpianus 30 ad ed.

Ulpian, 30 on the Edict.

Haec actio bonorum possessoribus ceterisque ^ ^ successoribus ^ ^ et ei, cui ex trebelliano senatus consulto restituta est hereditas, competit.

This action is available to the possessors of the estate and to the other ^ ^ successors ^ ^, and to him to whom the inheritance has been restored by the Trebellian senatus consultum.

Dig. 16.3.1.20

Digest 16.3.1.20

Ulpianus 30 ad ed.

Ulpian, 30 on the Edict.

Non tantum praeteritus dolus in depositi actione veniet, sed etiam futurus, id est post litem contestatam.

Not only past fraud will come into the action on deposit, but also future fraud, that is, after issue has been joined.

Dig. 16.3.1.21

Digest 16.3.1.21

Ulpianus 30 ad ed.

Ulpian 30 on the Edict.

Thence Neratius writes that, if a deposited thing was lost without evil fraud and is recovered after the iudicium has been accepted, nonetheless the defendant is rightly compelled to restitution and ought not to be absolved unless he restores. The same Neratius says that, although an action of deposit was then brought against you at a time when you did not have the faculty of restoring—perhaps the granaries being shut—nevertheless, if before condemnation you have the faculty of restoring, you must be condemned unless you restore, because the thing is with you: for then indeed the question is whether you acted with dolus malus, when you do not have the thing.

Dig. 16.3.1.22

Digest 16.3.1.22

Ulpianus 30 ad ed.

Ulpian, 30 on the Edict.

Moreover, it is also written by Julian in the thirteenth book of the Digests that the one who deposited the thing can at once proceed by the action of deposit: for by that very fact he who undertook it is acting in fraud (dolus), in that he does not return the thing to the one demanding it back. But Marcellus says that he who does not return it to the demander is not always to be thought to be acting in fraud: for what if the thing is in a province or in warehouses (horrea), the opening of which at the time of condemnation there is no ability? or the condition of the deposit has not arisen?

Dig. 16.3.1.23

Digest 16.3.1.23

Ulpianus 30 ad ed.

Ulpian 30 on the Edict.

Hanc actionem bonae fidei esse dubitari non oportet.

It ought not to be doubted that this action is of good faith.

Dig. 16.3.1.24

Digest 16.3.1.24

Ulpianus 30 ad ed.

Ulpian book 30 on the Edict.

Et ideo et fructus in hanc actionem venire et omnem causam et partum, dicendum est, ne nuda res veniat.

And therefore it must be said that both the fruits come into this action, and every cause and the offspring, lest a bare thing come.

Dig. 16.3.1.25

Digest 16.3.1.25

Ulpianus 30 ad ed.

Ulpian, 30 on the Edict.

Si rem depositam vendidisti eamque postea redemisti in causam depositi, etiamsi sine dolo malo postea perierit, teneri te depositi, quia semel dolo fecisti, cum venderes.

If you sold the deposited thing and then later bought it back into the cause of deposit, even if afterward it perished without fraudulent intent, you are held liable on the deposit, because you once acted with dolus when you sold it.

Dig. 16.3.1.26

Digest 16.3.1.26

Ulpianus 30 ad ed.

Ulpian 30 on the Edict.

In depositi quoque actione in litem iuratur.

Also in the action of deposit, an oath is sworn as to the suit’s value.

Dig. 16.3.1.27

Digest 16.3.1.27

Ulpianus 30 ad ed.

Ulpian, 30 on the Edict.

Non solum si servus meus, sed et si is qui bona fide mihi serviat rem deposuerit, aequissimum erit dari mihi actionem, si rem ad me pertinentem deposuit.

Not only if my slave, but also if one who serves me in good faith has deposited a thing, it will be most equitable that an action be given to me, if he deposited a thing pertaining to me.

Dig. 16.3.1.28

Digest 16.3.1.28

Ulpianus 30 ad ed.

Ulpian, 30 on the Edict.

Simili modo et si usum fructum in servo habeam, si id quod deposuit ex eo peculio fuit quod ad me pertinebat vel res mea fuit, eadem actione agere potero.

In a similar manner, even if I have a usufruct in a slave, if that which he deposited was from that peculium which pertained to me, or was my property, I will be able to bring the same action.

Dig. 16.3.1.29

Digest 16.3.1.29

Ulpianus 30 ad ed.

Ulpian 30 on the edict.

Item si servus hereditarius deposuerit, heredi postea adeunti competit actio.

Likewise, if a slave of the inheritance has made a deposit, an action lies to the heir who afterwards comes into the inheritance.

Dig. 16.3.1.30

Digest 16.3.1.30

Ulpianus 30 ad ed.

Ulpian 30 on the Edict.

If a slave made a deposit, whether he lives or has died, the master will with utility avail himself of this action. But the slave himself, once manumitted, will not be able to sue: and even if he has been alienated, the action still belongs to him whose slave he was when he deposited; for the beginning of the contract must be looked to.

Dig. 16.3.1.31

Digest 16.3.1.31

Ulpianus 30 ad ed.

Ulpian, 30 on the Edict.

Si duorum servus sit qui deposuit, unicuique dominorum in partem competit depositi.

If the one who deposited is the slave of two men, the deposit accrues in part to each of the masters.

Dig. 16.3.1.32

Digest 16.3.1.32

Ulpianus 30 ad ed.

Ulpian, 30 on the Edict.

If you restored to Titius a thing deposited by a slave, whom you supposed to be his owner when he was not, Celsus says you are not held by the action of deposit, because no dolus intervened: but against Titius, to whom the thing has been restored, the owner of the slave will bring an action: and if he produces it, it will be vindicated; but if, though he knew it was another’s, he has consumed it, he will be condemned, because by dolus he brought it about that the owner should not possess.

Dig. 16.3.1.33

Digest 16.3.1.33

Ulpianus 30 ad ed.

Ulpian book 30 On the Edict.

Elegantly the question is raised by Julian: if a slave has deposited money with me on the terms that I give it to his master for his liberty, and I have given it, am I held by the deposit? And in the thirteenth book of the Digest he writes that, if indeed I have given it as deposited with me for this purpose and have apprised you of this, the action of deposit does not lie for you, because you received it knowingly; I am therefore free from dolus. But if, however, I have paid it as though it were my own for his liberty, I shall be held. This opinion seems true to me: for here he not only did not fail to return it through dolus malus, but he did not even return it; for to return is one thing, to give as if from one’s own is another.

Dig. 16.3.1.34

Digest 16.3.1.34

Ulpianus 30 ad ed.

Ulpian, 30 on the Edict.

Si pecunia apud te ab initio hac lege deposita sit, ut si voluisses utereris, prius quam utaris depositi teneberis.

If money has been deposited with you from the outset on this term, that if you wished you might use it, you will be held to the deposit before you use it.

Dig. 16.3.1.35

Digest 16.3.1.35

Ulpianus 30 ad ed.

Ulpian Book 30 on the Edict.

Often it happens that a thing deposited or coins are at the peril of the person with whom they are deposited: as, for example, if this is expressly agreed. But also, if someone offered himself for the deposit, the same Julian writes that he has bound himself to the peril of the deposit, yet in such a way that he is liable not only for dolus, but also for culpa and custody, though not for fortuitous accidents.

Dig. 16.3.1.36

Digest 16.3.1.36

Ulpianus 30 ad ed.

Ulpian, 30 on the Edict.

If money has been deposited in a sealed purse and one of the heirs of the one who deposited it comes demanding it back, it must be considered how satisfaction is to be given to him. The money must be brought forth either before the praetor or with honorable persons intervening, and paid out according to his hereditary share; and even if it is unsealed, this will not be done contrary to the law of deposit, since it will occur either with the praetor authorizing or with honorable persons intervening: the remainder either remaining with him, if he so wishes (the seals, namely, first impressed for him either by the praetor or by those in whose presence the seals were removed), or, if he refuses this, being deposited in a public building. But if there are things which cannot be divided, he ought to hand them all over, with adequate satisdation to be furnished to him by the claimant in respect of what is above his share; but if no satisdation is provided, the thing is to be deposited in a public building and the depositary is to be freed from every action.

Dig. 16.3.1.37

Digest 16.3.1.37

Ulpianus 30 ad ed.

Ulpian 30 on the Edict.

With Julian, in the thirteenth book of the Digests, such a case is reported: for he says that, if the depositor has died and there are two who contend with each other, each saying that he alone is the heir, the thing is to be handed over to him who is prepared to defend, against the other, the defendant—that is, the one who received the deposit: but if neither undertakes this burden, he says it is most convenient to say that he is not to be compelled by the praetor to take up the suit: therefore the thing ought to be deposited in some temple, until judgment is given concerning the inheritance.

Dig. 16.3.1.38

Digest 16.3.1.38

Ulpianus 30 ad ed.

Ulpian, 30 on the Edict.

If someone reads the testamentary tablets deposited with him, with several persons present, Labeo says that an action of deposit can rightly be brought concerning the tablets. I am of the opinion that an action for injuries can also be brought, if the testament was recited in the presence of certain persons with this intention: that the secret judgments of him who has made the testament might be divulged.

Dig. 16.3.1.39

Digest 16.3.1.39

Ulpianus 30 ad ed.

Ulpian 30 on the edict.

Si praedo vel fur deposuerint, et hos Marcellus libro sexto digestorum putat recte depositi acturos: nam interest eorum eo, quod teneantur.

If a brigand or a thief should make a deposit, Marcellus in the sixth book of the Digest thinks that these will properly proceed by the action of deposit: for their interest lies in this, that they are held liable.

Dig. 16.3.1.40

Digest 16.3.1.40

Ulpianus 30 ad ed.

Ulpian, 30 on the Edict.

If someone seeks silver or gold deposited, ought he to include the form (species) or also the weight? And the better view is that he should include both, by naming, for instance, a cup or a platter or a patera, and by adding the material and the weight. But if it is purple-dyed cloth or wool, the weight likewise must be added, with this saved: that, if there is uncertainty about the quantity of the weight, aid is given to the one taking the oath.

Dig. 16.3.1.41

Digest 16.3.1.41

Ulpianus 30 ad ed.

Ulpian, book 30 on the Edict.

If a sealed chest has been deposited, is the chest alone to be claimed, or must the particulars also be included? And Trebatius says that the chest is to be demanded back, and that an action on deposit is not to be brought for the several individual things; but if the things have been shown and so deposited, the specific items of clothing are to be added. Labeo, however, says that he who deposits the chest is seen to deposit the individual things as well; therefore he ought also to bring an action concerning the things.

quid ergo si ignoraverit is, qui depositum suscipiebat, res ibi esse? non multum facere, cum suscepit depositum. ergo et rerum depositi agi posse existimo, quamvis signata cista deposita sit.

What then if he who was receiving the deposit did not know that there were things inside? It does not make much difference, since he accepted the deposit. Therefore I consider that an action of deposit concerning the things can also be brought, although a sealed chest was deposited.

Dig. 16.3.1.42

Digest 16.3.1.42

Ulpianus 30 ad ed.

Ulpian 30 on the Edict.

It is established that a filius familias is liable in the action of deposit, since he is also held under the other actions; but one can also sue his father, only to the extent of the peculium. The same holds for a slave: for suit will be brought against the master. Clearly, both Julian wrote, and it seems to us, that if proceedings are carried on in the name of those who are under potestas, there also comes into the judgment whether anything has been taken or defrauded through the person in whose legal control they are, so that their dolus too comes in, not only that of the very persons with whom the contract was made.

Dig. 16.3.1.43

Digest 16.3.1.43

Ulpianus 30 ad ed.

Ulpian 30 on the Edict.

If a thing has been deposited with two, action can be brought against each one of them, nor will the other be released if suit is brought against the other: for they are released not by election, but by solution (payment). Accordingly, if both have acted with dolus and one has furnished what the interest is (damages), the other will not be proceeded against, by the example of two guardians; but if the one can do nothing or can do less, recourse will be had to the other; and the same holds if the one has not acted with dolus and for that reason has been absolved, for recourse will be had to the other.

Dig. 16.3.1.44

Digest 16.3.1.44

Ulpianus 30 ad ed.

Ulpian, 30 on the Edict.

But if two have deposited and both bring suit, then, if they deposited on terms that even one may take the whole, he can sue for the whole in solidum; but if rather by share, to the extent of their interest, then it must be said that the condemnation is to be made for the part.

Dig. 16.3.1.45

Digest 16.3.1.45

Ulpianus 30 ad ed.

Ulpian, book 30 on the Edict.

Si deposuero apud te, ut post mortem tuam reddas, et tecum et cum herede tuo possum depositi agere: possum enim mutare voluntatem et ante mortem tuam depositum repetere.

If I have deposited with you, on the understanding that you are to return it after your death, I can proceed by the action of deposit both with you and with your heir: for I can change my will and demand back the deposit before your death.

Dig. 16.3.1.46

Digest 16.3.1.46

Ulpianus 30 ad ed.

Ulpian 30 on the edict.

Proinde et si sic deposuero, ut post mortem meam reddatur, potero et ego et heres meus agere depositi, ego mutata voluntate.

Accordingly, even if I have deposited in such a way that it is to be returned after my death, both I and my heir will be able to bring the action of deposit; I, upon a change of intention.

Dig. 16.3.1.47

Digest 16.3.1.47

Ulpianus 30 ad ed.

Ulpian, 30 on the Edict.

Since, however, only fraud enters into this action, the question has been asked whether, if an heir sold a thing that had been deposited or lent for use with the testator, being unaware that it had been deposited or lent, he is liable. And since he did not act with fraud, he will not be liable for the thing: whether nevertheless he is liable at least for the price that came to him? And the truer view is that he is liable: for he commits fraud precisely in this, that he does not restore what has come to him.

Dig. 16.3.2

Digest 16.3.2

Paulus 31 ad ed.

Paulus 31 on the Edict.

Quid ergo, si pretium nondum exegit aut minoris quam debuit vendidit? actiones suas tantummodo praestabit.

What then, if he has not yet exacted the price or has sold for less than he ought? He will furnish only his actions.

Dig. 16.3.3

Digest 16.3.3

Ulpianus 31 ad ed.

Ulpian 31 on the edict.

Plane si possit rem redimere et praestare nec velit, non caret culpa, quemadmodum si redemptam vel alia ratione suam factam noluit praestare causatus, quod semel ignarus vendiderit.

Clearly, if he could redeem the thing and render it and is unwilling, he is not without fault, just as if, once it has been redeemed or made his own by another title, he was unwilling to render it, pleading as an excuse that he once sold it in ignorance.

Dig. 16.3.4

Digest 16.3.4

Paulus 5 ad plaut.

Paulus 5 on Plautius.

Sed et si non sit heres, sed putavit se heredem et vendidit, simili modo lucrum ei extorquebitur.

But even if he is not heir, but thought himself heir and sold, in a similar manner the lucre will be extorted from him.

Dig. 16.3.5pr.

Digest 16.3.5pr.

Ulpianus 30 ad ed.

Ulpian, 30 on the edict.

Ei, apud quem depositum esse dicetur, contrarium iudicium depositi datur, in quo iudicio merito in litem non iuratur: non enim de fide rupta agitur, sed de indemnitate eius qui depositum suscepit.

To the one with whom a deposit is alleged to be, the counter action of deposit is given, in which action, rightly, no oath in litem is sworn: for the case is not about broken faith, but about the indemnity of him who undertook the deposit.

Dig. 16.3.5.1

Digest 16.3.5.1

Ulpianus 30 ad ed.

Ulpian, Book 30 on the Edict.

The action of deposit lies against the sequester. Yet if it was agreed with the sequester that he would exhibit the deposited thing in a certain place, and he does not exhibit it there, it is clear that he is liable; but if it was agreed as to several places, it is at his discretion at which place he exhibits it; but if nothing was agreed, notice must be given to him to exhibit it before the praetor.

Dig. 16.3.5.2

Digest 16.3.5.2

Ulpianus 30 ad ed.

Ulpian 30 on the Edict.

If a sequestrator should wish to lay down his office, what must he do? And Pomponius says that he ought to approach the praetor and, by his authority, after a denuntiation has been made to those who chose him, the thing is to be restored to whichever party shall be present. But I do not think this is always true: for generally it is not to be permitted that the office which he has once undertaken be laid down contrary to the law of the deposit, unless a most just cause intervenes; and when it is permitted, rarely is the thing to be restored to the one who comes, but it ought, by the arbitrament of the judge, to be deposited in some temple.

Dig. 16.3.6

Digest 16.3.6

Paulus 2 ad ed.

Paulus 2 on the edict.

Proprie autem in sequestre est depositum, quod a pluribus in solidum certa condicione custodiendum reddendumque traditur.

Properly, however, a sequestration is a deposit which is entrusted by several persons in solidum, to be kept and returned upon a certain condition.

Dig. 16.3.7pr.

Digest 16.3.7, beginning.

Ulpianus 30 ad ed.

Ulpian 30 on the Edict.

If a man has been deposited with him so that an inquiry might be held about him, and for that reason bound or stretched out on the mala mansio, and the sequester, led by mercy, releases him, I judge what was done to be very near to fraud, because, since he knew for what purpose he was being prepared, he exercised inopportune mercy, when he could have not undertaken such a case rather than deceive.

Dig. 16.3.7.1

Digest 16.3.7.1

Ulpianus 30 ad ed.

Ulpianus 30 on the edict.

An action of deposit is given against the heir for the fraud of the deceased, for the whole: for although otherwise for the fraud of the deceased we are not accustomed to be held liable except for that share which has come to us, nevertheless here the fraud derives from contract and from the pursuit of the thing, and therefore one heir is liable for the whole, but several are liable for that share in which each is heir.

Dig. 16.3.7.2

Digest 16.3.7.2

Ulpianus 30 ad ed.

Ulpian book 30 on the Edict.

Whenever the money-changers withdraw from the forum, it is customary that, in the first place, consideration be had for the depositors—that is, for those who had monies deposited, not for those who were conducting business at interest with the money-changers, or with the money-changers, or through them. And therefore even before privileges, if the assets have been sold, consideration is had for the depositors, provided that no account is taken of those who afterwards accepted interest, as though they had renounced the deposit.

Dig. 16.3.7.3

Digest 16.3.7.3

Ulpianus 30 ad ed.

Ulpian, book 30 On the edict.

Item quaeritur, utrum ordo spectetur eorum qui deposuerunt an vero simul omnium depositariorum ratio habeatur. et constat simul admittendos: hoc enim rescripto principali significatur.

Likewise it is asked whether the order of those who have deposited is to be regarded, or rather that consideration be had of all the depositaries at the same time. and it is settled that they are to be admitted simultaneously: for this is signified by an imperial rescript.

Dig. 16.3.8

Digest 16.3.8

Papinianus 9 quaest.

Papinian 9 Questions.

The privilege is exercised not only in that quantity which is found in the banker’s goods from the deposited money, but in all the defrauder’s faculties; and this has been received, on account of the necessary use of bankers, from considerations of public utility. Plainly, the expense which was necessarily incurred always takes precedence; for, with that deducted, the calculation of the estate is customarily drawn up.

Dig. 16.3.9

Digest 16.3.9

Paulus 17 ad ed.

Paul book 17 on the Edict.

In the action of deposit, if suit is brought on account of the act of the deceased against one of several heirs, I ought to sue for the hereditary share; but if on account of his own delict, I do not sue for a part: rightly, because the assessment is referred to the fraud (dolus) which the heir himself committed in solidum.

Dig. 16.3.10

Digest 16.3.10

Iulianus 2 ex minic.

Julianus 2 from Minicius.

Nec adversus coheredes eius, qui dolo carent, depositi actio competit.

Nor does the action on deposit lie against his coheirs, who are free from fraud.

Dig. 16.3.11

Digest 16.3.11

Ulpianus 41 ad sab.

Ulpian, 41 on Sabinus.

What a slave has deposited, the one with whom it was deposited will most rightly return to the slave in accordance with good faith: for it does not accord with good faith to deny what one has received; rather he ought to return it to the one from whom he received it—provided, however, that he return it without any dolus at all, that is, so that there is not even a suspicion of culpa. Finally, Sabinus made this clear by adding: “and no cause has intervened whereby he could think that the master does not wish it to be returned.” This is so, if he could have suspected it, clearly being moved by a just reason; otherwise it suffices that bona fides be present. But even if the slave had previously committed theft of that thing, nevertheless if the one with whom he deposited it did not know, or believed that the master would not be unwilling to this solutio, he can be released: for bona fides is required.

not only, moreover, if it was paid while he was remaining in servitude, but also if, after manumission or alienation, liberation ensues for just causes, namely if someone, unaware that he had been manumitted or alienated, paid. And the same, Pomponius writes, is to be observed in the case of all debtors.

Dig. 16.3.12pr.

Digest 16.3.12, beginning.

Pomponius 22 ad sab.

Pomponius Book 22 on Sabinus.

Si in asia depositum fuerit, ut romae reddatur, videtur id actum, ut non impensa eius id fiat apud quem depositum sit, sed eius qui deposuit.

If in Asia a deposit has been made, to be returned at Rome, it appears to have been agreed that the expense is not to be borne by the one with whom it was deposited, but by the one who deposited it.

Dig. 16.3.12.1

Digest 16.3.12.1

Pomponius 22 ad sab.

Pomponius 22 on sab.

The deposit ought to be restored in that place in which, without fraudulent intent on his part, the one with whom it was deposited is: as to where it was deposited, it makes no difference. The same things are to be said generally also in all good‑faith actions. But it must be said that, if the plaintiff wishes the thing to be conveyed to Rome at his own expenses and at his own peril, he is to be heard, since this too is observed in the action ad exhibendum.

Dig. 16.3.12.2

Digest 16.3.12.2

Pomponius 22 ad sab.

Pomponius 22 on Sabinus.

Cum sequestre recte agetur depositi sequestraria actione, quam et in heredem eius reddi oportet.

Since the sequester is rightly proceeded against by the sequesterary action of deposit, which ought also to be afforded against his heir.

Dig. 16.3.12.3

Digest 16.3.12.3

Pomponius 22 ad sab.

Pomponius 22 on Sabinus.

Just as that which ought to be given under a stipulation or under a testament, after the action has been accepted, would perish to the detriment of the defendant, so a deposit too, on the day on which the action of deposit has been brought, is at the peril of the one with whom it was deposited, if at the time of accepting the action the defendant was able to return it and did not.

Dig. 16.3.13pr.

Digest 16.3.13pr.

Paulus 31 ad ed.

Paulus 31 on the edict.

If anyone has made a denial, not as against the owner, but on the ground that he did not consider the person who was demanding the deposited thing to be a true procurator or the heir of him who had deposited it, he has done nothing with fraudulent intent; but afterwards, if he comes to know, action can be brought against him, since he now begins to act with fraudulent intent if he is unwilling to return it.

Dig. 16.3.13.1

Digest 16.3.13.1

Paulus 31 ad ed.

Paulus 31 on the Edict.

Competit etiam condictio depositae rei nomine, sed non antequam id dolo admissum sit: non enim quemquam hoc ipso, quod depositum accipiat, condictione obligari, verum quod dolum malum admiserit.

A condictio is also available under the title of the deposited thing, but not until a fraudulent act has been committed; for no one is bound by a condictio merely because he receives a deposit, but because he has committed fraud.

Dig. 16.3.14pr.

Digest 16.3.14, at the beginning.

Gaius 9 ad ed. provinc.

Gaius 9 on the Provincial Edict.

If several heirs have arisen to him who deposited, it is said that, if the greater part has entered upon the inheritance, the thing must be restored to those present: moreover, the greater part is to be understood not from the number of persons, but from the magnitude of the hereditary portions: suitable security must be given.

Dig. 16.3.14.1

Digest 16.3.14.1

Gaius 9 ad ed. provinc.

Gaius 9 on the provincial edict.

Whether, however, action has been brought with the very person with whom the thing was deposited or with his heir, and the thing has, by its own nature, perished before res judicata—say, if a slave has died—Sabinus and Cassius said that the one with whom the action was brought ought to be absolved, because it would be equitable that the natural demise should pertain to the plaintiff, especially since that thing would have been going to perish even if it had been restored to the plaintiff.

Dig. 16.3.15

Digest 16.3.15

Iulianus 13 Dig.

Julian 13 Digest.

Qui rem suam deponi apud se patitur vel utendam rogat, nec depositi nec commodati actione tenetur: sicuti qui rem suam conducit aut precario rogat, nec precario tenetur nec ex locato.

He who allows his own property to be deposited with himself or asks to have it for use is held by neither the action of deposit nor of commodatum; just as he who hires his own property or asks for it by precarium is liable neither under precarium nor under the action ex locato.

Dig. 16.3.16

Digest 16.3.16

Africanus 7 quaest.

Africanus 7 Questions.

If the one with whom you deposited a thing deposits it with another, and that one has committed something by fraud, then, on account of the fraud of him with whom it was afterwards deposited, the one with whom you deposited is held liable only to this extent: that he furnish his actions to you.

Dig. 16.3.17pr.

Digest 16.3.17, preface.

Florus 7 inst.

Florus 7 Institutes.

It is permitted to deposit both by several persons and by a single person; however, with a sequester only several can deposit: for that happens when some matter is brought into controversy. Therefore, in this case each one is deemed to have deposited for the whole (in solidum); which is otherwise when several deposit a thing held in common.

Dig. 16.3.17.1

Digest 16.3.17.1

Florus 7 inst.

Florus 7 Institutes.

The proprietary right of the deposited thing remains with the depositor: and so too the possession, unless it has been deposited with a sequester: for then and only then does the sequester possess: for the point of that deposit is that that time should not run to the possession of either party.

Dig. 16.3.18

Digest 16.3.18

Nerva 2 membr.

Nerva 2 membranes.

Concerning what has been deposited by reason of the tumult of fire, collapse, or shipwreck, an action for the deceased’s fraud lies against the heir, for the hereditary portion and for single damages, and also within a year: against the person himself it is granted for the whole, for double damages, and in perpetuity.

Dig. 16.3.19

Digest 16.3.19

Ulpianus 17 ad ed.

Ulpian 17 on the edict.

Iulianus et Marcellus putant filium familias depositi recte agere posse.

Julian and Marcellus think that a filius familias can properly bring the action of deposit.

Dig. 16.3.20

Digest 16.3.20

Paulus 18 ad ed.

Paulus, 18 on the Edict.

Si sine dolo malo rem depositam tibi amiseris, nec depositi teneris nec cavere debes, si deprehenderis eam reddi: si tamen ad te iterum pervenerit, depositi teneris.

If you have lost the deposited thing with you without dolus malus, you are neither liable on the deposit nor must you give security to return it if you should find it; if, however, it comes to you again, you are liable on the deposit.

Dig. 16.3.21pr.

Digest 16.3.21pr.

Paulus 60 ad ed.

Paulus 60 on the Edict.

Si apud filium familias res deposita sit et emancipatus rem teneat, pater nec intra annum de peculio debet conveniri, sed ipse filius.

If a thing has been deposited with a filius familias, and, once emancipated, he retains the thing, the father ought not to be proceeded against, not even within the year, on the peculium, but rather the son himself.

Dig. 16.3.21.1

Digest 16.3.21.1

Paulus 60 ad ed.

Paul 60 on the Edict.

Plus trebatius existimat, etiamsi apud servum depositum sit et manumissus rem teneat, in ipsum dandam actionem, non in dominum, licet ex ceteris causis in manumissum actio non datur.

Moreover, Trebatius considers that, even if a deposit has been made with a slave and, once manumitted, he holds the thing, the action should be granted against him himself, not against the master, although in other causes an action is not given against the manumitted person.

Dig. 16.3.22

Digest 16.3.22

Marcellus 5 Dig.

Marcellus 5 Digest.

If two heirs shall, by dolus, have interverted a thing deposited with the deceased, in a certain case they will of course be held in shares: for if they shall have divided the ten thousand which had been deposited with the deceased, and shall have carried off five thousand apiece and each is solvent, they will be bound in shares; for the plaintiff’s interest is no more. But if they shall have melted down a scale-pan, or allowed it to be melted down by someone, or some other kind of item shall have been interverted by their dolus, they can be sued for the whole (in solidum), as if they themselves had undertaken its safekeeping; for assuredly it is true that each, by dolus, has acted for the whole, and unless the thing is restored for the whole, it cannot be restored. Nor will he judge absurdly who shall think this plainly: that unless by restitution of the entire thing he with whom suit has been brought cannot be released; nevertheless he must be condemned, if the thing is not restored, for that share in which he stood as heir.

Dig. 16.3.23

Digest 16.3.23

Modestinus 2 diff.

Modestinus 2 Differences.

Actione depositi conventus servo constituto cibariorum nomine apud eundem iudicem utiliter experitur.

When convened by the action of deposit, he usefully proceeds before the same judge under the title of rations, a slave having been placed (with him).

Dig. 16.3.24

Digest 16.3.24

Papinianus 9 quaest.

Papinian, 9 questions.

" lucius titius to sempronius, greetings. one hundred coins, which on this day you entrusted to me, with the slave stichus, the agent, counting them out, to be with me—so that you might have it as known—I make known to you by this letter written in my own hand: which I will immediately pay out to you when you wish and where you wish. " it is inquired on account of the increment of usury.

I answered that the action of deposit has a place: for what is commendare other than to deposit?—which is true thus, if it was transacted that the very bodies of the coins should be returned the same; for if it was agreed that the tantundem be paid, that matter goes beyond the most well-known boundaries of deposit. In which question, if the action of deposit does not hold, since it was agreed that the same amount, not the same things, be returned, it is not readily to be said that a reckoning of usuries (interest) should be had.

And indeed it is constituted in good‑faith judgments, as regards interest (usury), that the office of the arbiter can effect as much as a stipulation; but it is against good faith and the nature of a deposit to demand interest for the time before mora (default) from him who conferred a beneficium in undertaking the money. If, however, from the beginning it was agreed that interest be provided, the law of the contract will be observed.

Dig. 16.3.25pr.

Digest 16.3.25 pr.

Papinianus 3 resp.

Papinian, 3 Responses.

Die sponsaliorum aut postea res oblatas puellae, quae sui iuris fuit, pater suscepit: heres eius ut exhibeat recte convenietur etiam actione depositi.

On the day of the betrothal or afterwards, the father received the things offered to the girl who was sui iuris: his heir is rightly sued to produce them, even by the action of deposit.

Dig. 16.3.25.1

Digest 16.3.25.1

Papinianus 3 resp.

Papinian 3 responses.

Qui pecuniam apud se non obsignatam, ut tantundem redderet, depositam ad usus proprios convertit, post moram in usuras quoque iudicio depositi condemnandus est.

Whoever converts money left with him unsealed, deposited so that he should render the equivalent amount, to his own uses, after default is also to be condemned to interest in the action of deposit.

Dig. 16.3.26pr.

Digest 16.3.26pr.

Paulus 4 resp.

Paulus book 4 of Responses

Publia maevia, when she was setting out to her husband, commended to gaiae seiae a closed chest with clothing and equipment and said to her: " when I shall have come sound and safe, you will restore it to me: certainly, if something mortal should befall me, to my son, whom I have from another husband. " she having died intestate, I desire to know to whom the entrusted things ought to be restored, to the son or to the husband. paulus answered: to the son.

Dig. 16.3.26.1

Digest 16.3.26.1

Paulus 4 resp.

Paulus 4 Responses.

Lucius titius thus provided: " I received and I hold as in account of a deposit the things written above of the silver, ten thousand denarii, and I will do all things and I agree and I have acknowledged, as has been written above: and I consented to furnish to you interest of four obols for each mina for each month until the repayment of all the silver. " I ask whether interest (usury) can be sought. Paulus replied that the contract about which inquiry is made exceeds the measure of deposited money, and therefore, according to the convention, interest too can be sought by the action of deposit.

Dig. 16.3.26.2

Digest 16.3.26.2

Paulus 4 resp.

Paul 4 Responses.

" titius semproniis greetings. that I have from you gold, of weight more or less ten pounds, and two dishes, a sealed sack: out of which you owe me ten, which you deposited with titius: likewise ten to trophimatus: likewise from the account of your father ten and whatever runs over. " I ask whether from a writing of this kind any obligation has arisen, namely so far as it pertains solely to the money matter.

he answered that from the letter about which inquiry is made, indeed no obligation seems to have arisen, but that proof of the deposited things can be made good; and whether moreover the one who in the same letter took security that ten were owed to himself can prove what he wrote, the judge will assess.

Dig. 16.3.27

Digest 16.3.27

Paulus 7 resp.

Paulus 7 responses.

Lucius Titius, since he had a daughter in his power, Seia, settled her in matrimony to Pamphilus, another man’s slave, to whom he also gave a dowry, which he transferred under the title of a deposit as a security; and afterwards, with no notice having been given by the master, the father died, and soon the slave Pamphilus as well. I ask by what action Seia can seek the money, since she herself has become heir to her father. Paulus responded that, since a dowry could not be constituted, the money must be reclaimed by an action on the ground of deposit, by an action de peculio.

Dig. 16.3.28

Digest 16.3.28

Scaevola 1 resp.

Scaevola Book 1 of Responses.

quintus caecilius candidus wrote a letter to paccius rogatianus in the words written below: "caecilius candidus to his paccius rogatianus, greetings. the twenty-five coins which you wished to be with me, by this letter i make it known to you have come into my account: and that i may at once provide that they not lie idle for you: that is, that you receive their usuries (interest), i will take care." it was asked whether from that letter interest also can be claimed. i answered that interest is owed by a good-faith judgment, whether he has actually received it or has used the money in his own affair.

Dig. 16.3.29pr.

Digest 16.3.29, preface.

Paulus 2 sent.

Paul 2 Sentences.

Si sacculum vel argentum signatum deposuero et is penes quem depositum fuit me invito contrectaverit, et depositi et furti actio mihi in eum competit.

If I have deposited a little bag or stamped silver (coined money), and the one with whom it was deposited has handled it against my will, both the action of deposit and the action of theft lies to me against him.

Dig. 16.3.29.1

Digest 16.3.29.1

Paulus 2 sent.

Paul 2 sentences.

Si ex permissu meo deposita pecunia is penes quem deposita est utatur, ut in ceteris bonae fidei iudiciis usuras eius nomine praestare mihi cogitur.

If, with my permission, the deposited money is used by the one with whom it was deposited, he is, as in the other good‑faith actions, compelled to render to me interest on that account.

Dig. 16.3.30

Digest 16.3.30

Nerva 1 resp.

Nerva 1 response.

Si fideiussor pro te apud quem depositum est litis aestimatione damnatus sit, rem tuam fieri.

If the fideiussor on your behalf, with whom the deposit is, has been condemned in the assessment of the suit, the thing becomes yours.

Dig. 16.3.31pr.

Digest 16.3.31 pr.

Tryphonus 9 disp.

Tryphonus 9 Disputations.

Good faith, which is required in contracts, desires the highest equity: but do we assess it according to the mere law of nations, or rather together with the civil and the praetorian precepts? For example, a defendant in a capital trial deposited with you one hundred: he has been deported, his goods have been confiscated: should these be returned to him, or delivered into the public treasury? If we look only to natural law and the law of nations, they must be restored to the one who gave them; if to civil law and the order of the statutes, they are rather to be delivered to the public: for one who has deserved ill publicly, so that he may be an example to others for deterring misdeeds, ought even to labor under indigence.

Dig. 16.3.31.1

Digest 16.3.31.1

Tryphonus 9 disp.

Tryphonus 9 disputations.

Another examination also arises here. Ought we to assess good faith only between those between whom the contract has been made, with nothing external assumed, or also with regard to other persons to whom that which is being transacted pertains? By way of example, a robber deposited with Seius, who was unaware of the depositor’s malice, the spoils which he had taken from me: ought Seius to restitute them to the robber or to me?

If we look simply at the giver and the receiver, this is good faith: that the thing entrusted be received back by the one who gave it; if we look to the equity of the whole matter, which is made up from all the persons who are involved in that transaction, then the things must be restored to me, from whom, by that most wicked deed, they were taken away. And I approve that this is justice, which renders to each his own (suum cuique) in such a way that it is not drawn away from the more just recovery of any person. But if I do not come to seek those things, nonetheless they are to be restored to the one who deposited them, although he deposited things ill-gotten.

which also Marcellus writes concerning the brigand and the thief. If, however, a robber, not knowing from whose son or slave he had taken the thing, deposited it with that person’s father or master, who was unaware, the deposit will not stand under the law of nations, whose competence is this: that one’s own property be given to another, not to the owner, to be kept as though it were another’s. And if a thief, who surreptitiously took my thing while I was unaware, should deposit it with me while I am still ignorant of his offense, it will rightly be said that a deposit is not contracted, because it is not in good faith for the owner to be compelled to restore his own thing to a robber.

sed et si etiamnunc ab ignorante domino tradita sit quasi ex causa depositi, tamen indebiti dati condictio competet.

but also if even now the thing has been delivered by an ignorant owner as if on the ground of deposit, nevertheless the condictio for what was not due will be available.

Dig. 16.3.32

Digest 16.3.32

Celsus 11 Dig.

Celsus 11 Digest.

That Nerva said a broader (i.e., grosser) fault is fraud displeased Proculus; to me it seems most true. For even if someone is not diligent to the degree which the nature of men desires, nevertheless unless he renders care in a deposit according to his own measure, he does not lack fraud: for, with good faith intact, he will not render a lesser diligence than in his own affairs.

Dig. 16.3.33

Digest 16.3.33

Labeo 6 post. a iav. epit.

Labeo 6 of the Posteriors, epitomized by Javolenus.

Your slave deposited money together with attio in sequestration (escrow) with maevium on this condition: that it be returned to you, if you should have proved it to be yours; if not, that it be returned to attio. I said that you could proceed against the one with whom it had been deposited by an action for an uncertain thing, that is, for production (ad exhibendum), and, once it was exhibited, vindicate it, because the slave, by depositing, could not have made your right worse.

Dig. 16.3.34

Digest 16.3.34

Labeo 2 pith.

Labeo book 2 of the Pithanon.

Potes agere depositi cum eo, qui tibi non aliter quam nummis a te acceptis depositum reddere voluerit, quamvis sine mora et incorruptum reddiderit.

You can bring the action of deposit against one who wished to return the deposit to you in no other way than upon receiving coins from you, although he returned it without delay and uncorrupted.