Justinian•DIGESTA
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Dig. 39.3.0. De aqua et aquae pluviae arcendae.
39.2.0. On threatened damage and on eaves and projections.
Dig. 39.3.0. On water and on warding off rainwater.
Dig. 39.6.0. De mortis causa donationibus et capionibus.
39.5.0. On donations.
Dig. 39.6.0. On donations and acquisitions on account of death.
Hoc autem edictum remediumque operis novi nuntiationis adversus futura opera inductum est, non adversus praeterita, hoc est adversus ea quae nondum facta sunt, ne fiant: nam si quid operis fuerit factum, quod fieri non debuit, cessat edictum de operis novi nuntiatione et erit transeundum ad interdictum " quod vi aut clam factum erit ut restituatur", et " quod in loco sacro religiosove" et " quod in flumine publico ripave publica factum erit": nam his interdictis restituetur, si quid illicite factum est.
But this edict and the remedy of the notice of a new work was introduced against future works, not against past ones, that is, against those which have not yet been done, so that they may not be done: for if any work shall have been done which ought not to have been done, the edict concerning the notice of a new work ceases, and one must pass over to the interdict “what shall have been done by force or by stealth, that it be restored,” and “what in a sacred or religious place,” and “what shall have been done in a public river or on a public bank”: for by these interdicts there will be restoration, if anything has been done illicitly.
Inde quaeritur apud celsum libro duodecimo digestorum, si post opus novum nuntiatum conveniat tibi cum adversario, ut opus faceres, an danda sit conventionis exceptio? et ait celsus dandam, nec esse periculum, ne pactio privatorum iussui praetoris anteposita videatur: quid enim aliud agebat praetor quam hoc, ut controversias eorum dirimeret? a quibus si sponte recesserunt, debebit id ratum habere.
Thence it is asked in Celsus, in the 12th book of the Digest, if, after a new work has been announced, you come to an agreement with your adversary that you should do the work, whether the exception of the agreement is to be granted? And Celsus says it should be granted, nor is there danger lest the pact of private persons seem to be set before the praetor’s order: for what else was the praetor doing than this, namely, to resolve their controversies? From which, if they have withdrawn of their own accord, he ought to hold that as ratified.
Hoc autem edictum non omnia opera complectitur, sed ea sola, quae solo coniuncta sunt, quorum aedificatio vel demolitio videtur opus novum continere. idcirco placuit, si quis messem faciat, arborem succidat, vineam putet, quamquam opus faciat, tamen ad hoc edictum non pertinere, quia ad ea opera, quae in solo fiunt, pertinet hoc edictum.
However, this edict does not comprise all works, but only those which are conjoined to the soil, whose construction or demolition seems to contain a new work. Therefore it has been decided that, if someone gathers the harvest, cuts down a tree, or prunes a vine, although he does a work, nevertheless it does not pertain to this edict, because this edict pertains to those works which are done in the soil.
Nuntiamus autem, quia ius aliquid prohibendi habemus: vel ut damni infecti caveatur nobis ab eo, qui forte in publico vel in privato quid molitur: aut si quid contra leges edictave principum, quae ad modum aedificiorum facta sunt, fiet, vel in sacro vel in loco religioso, vel in publico ripave fluminis, quibus ex causis et interdicta proponuntur.
We give notice, moreover, because we have some right of prohibiting: either that security for damnum infectum be furnished to us by him who perhaps is contriving something in public or in private; or if anything shall be done contrary to the laws or the edicts of the emperors, which have been made concerning the regulation of buildings, either in a sacred or in a religious place, or in a public place or on the bank of a river, for which causes interdicts also are issued.
Quod si quis in mare vel in litore aedificet, licet in suo non aedificet, iure tamen gentium suum facit: si quis igitur velit ibi aedificantem prohibere, nullo iure prohibet, neque opus novum nuntiare nisi ex una causa potest, si forte damni infecti velit sibi caveri.
But if someone builds in the sea or on the shore, although he is not building on his own, nevertheless by the law of nations he makes it his own: therefore if anyone should wish to prohibit the one building there, he prohibits by no right; nor can he announce a new work except for one cause, if perchance he wishes to have security for damage not yet done.
Si autem domino praedii nuntiaverit, inutilis erit nuntiatio: neque enim sicut adversus vicinum, ita adversus dominum agere potest ius ei non esse invito se altius aedificare: sed si hoc facto usus fructus deterior fiet, petere usum fructum debebit.
If, however, he shall have given notice to the owner of the estate, the notification will be useless: for he cannot, as against a neighbor, so against the owner bring an action to assert that he has no right to build higher against his objection; but if, by this deed, the usufruct becomes deteriorated, he ought to sue to claim the usufruct.
Si in loco communi quid fiat, nuntiatio locum habebit adversus vicinum. plane si unus nostrum in communi loco faciat, non possum ego socius opus novum ei nuntiare, sed eum prohibebo communi dividundo iudicio vel per praetorem.
If something is done in a common place, a notification will have place against the neighbor. Clearly, if one of us does something in the common place, I, as a partner, cannot serve him with a “new work” notice, but I will prohibit him by the action for dividing the common property or through the praetor.
Quod si socius meus in communi insula opus novum faciat et ego propriam habeam, cui nocetur, an opus novum nuntiare ei possim? et putat labeo non posse nuntiare, quia possum eum alia ratione prohibere aedificare, hoc est vel per praetorem vel per arbitrum communi dividundo: quae sententia vera est.
But if my associate makes a new work on a common tenement, and I have one of my own, to which harm is done, can I serve him a new-work notice? And Labeo thinks that one cannot give notice, because I am able to prohibit him from building by another method, that is, either through the praetor or through an arbiter for dividing the common property: which opinion is true.
Si ego superficiarius sim et opus novum fiat a vicino, an possim nuntiare? movet, quod quasi inquilinus sum: sed praetor mihi utilem in rem actionem dat, et ideo et servitutium causa actio mihi dabitur et operis novi nuntiatio debet mihi concedi.
If I should be a superficiary and a new work be made by a neighbor, can I give notice? The point is raised, because I am, as it were, a lodger; but the praetor gives me a useful in rem action, and therefore an action for the sake of servitudes will also be given to me, and a notice of new work ought to be conceded to me.
De pupillo quaesitum est: et iulianus libro duodecimo digestorum scripsit pupillo non esse operis novi nuntiationis executionem dandam, nisi ad ipsius privatum commodum res pertineat, veluti si luminibus eius officiatur aut prospectui obsit. non aliter autem pupilli rata habebitur nuntiatio quam intercedente tutore auctore.
It was asked concerning a ward; and Julianus in book 12 of the Digesta wrote that enforcement of a notice of new work (operis novi nuntiatio) is not to be granted to a ward, unless the matter pertains to his private benefit, as for example if his lights are obstructed or his prospect is hindered. Moreover, a ward’s notification will not be held valid otherwise than with the tutor intervening as authorizer.
Nuntiari autem non utique domino oportet: sufficit enim in re praesenti nuntiari ei, qui in re praesenti fuerit, usque adeo, ut etiam fabris vel opificibus, qui eo loci operantur, opus novum nuntiari possit. et generaliter ei nuntiari opus novum potest, qui in re praesenti fuit domini operisve nomine, neque refert, quis sit iste vel cuius condicionis qui in re praesenti fuit: nam et si servo nuntietur vel mulieri vel puero vel puellae, tenet nuntiatio: sufficit enim in re praesenti operis novi nuntiationem factam sic, ut domino possit renuntiari.
However, it is by no means necessary that the notification be made to the owner: for it suffices that, in the present place, it be notified to whoever was present, to such an extent that even craftsmen or workmen who are operating in that spot can be notified of the new work. And, generally, the new work can be notified to whoever was present in the name of the owner or of the work, nor does it matter who this person is or of what condition the one who was present may be: for even if it is notified to a slave or to a woman or to a boy or to a girl, the notification holds; for it suffices that, in the present place, an announcement of a new work be made in such a way that it can be reported back to the owner.
Si quis forte in foro domino opus novum nuntiat, hanc nuntiationem nullius esse momenti exploratissimum est: in re enim praesenti et paene dixerim ipso opere, hoc est in re ipsa, nuntiatio facienda est: quod idcirco receptum est, ut confestim per nuntiationem ab opere discedatur. ceterum si alibi fiat nuntiatio, illud incommodi sequitur, quod, dum venitur ad opus si quid fuerit operis per ignorantiam factum, evenit, ut contra edictum praetoris sit factum.
If someone perchance in the forum notifies the owner of a new work, it is most thoroughly established that this notification is of no moment: for the notification must be made in the present matter and, I might almost say, at the work itself—that is, on the thing itself—, which has been received for this reason, that immediately, by means of the notification, there is a cessation from the work. But if the notification is made elsewhere, this inconvenience follows: that, while one is coming to the work, if anything of the work has been done through ignorance, it comes about that it has been done contrary to the praetor’s edict.
Si plurium res sit, in qua opus novum fiat et uni nuntietur, recte facta nuntiatio est omnibusque dominis videtur denuntiatum: sed si unus aedificaverit post operis novi nuntiationem, alii, qui non aedificaverint, non tenebuntur: neque enim debet nocere factum alterius ei qui nihil fecit.
If the thing be the property of several persons, upon which a new work is being made, and notice be given to one, the notification is properly made and it is deemed to have been notified to all the owners; but if one shall have built after the notice of new work, the others, who have not built, will not be bound: for the act of another ought not to harm him who has done nothing.
Si plurium dominorum rei opus noceat, utrum sufficiet unius ex sociis nuntiatio an vero omnes nuntiare debeant? et est verius unius nuntiationem omnibus non sufficere, sed esse singulis nuntiare necesse, quia et fieri potest, ut nuntiatorum alter habeat, alter non habeat ius prohibendi.
If the work should harm the property of several owners, will the notification by one of the associates suffice, or must all give notice? And it is more correct that the notification by one does not suffice for all, but that it is necessary to notify each individually, because it can also happen that one of those notified has, another does not have, the right of prohibiting.
Si quis ipsi praetori velit opus novum nuntiare, debet, ut interim testetur non posse se nuntiare: et si nuntiavit postea, et quod retro aedificatum erit destruendum erit, quasi repetito die nuntiatione facta.
If anyone should wish to nuntiate a new work to the praetor himself, he ought in the meantime to attest that he is not able to nuntiate; and if he nuntiated afterwards, even what shall have been built in the meantime must be destroyed, as though, the day having been repeated, the nuntiation had been made.
Et belle sextus pedius definiit triplicem esse causam operis novi nuntiationis, aut naturalem aut publicam aut impositiciam: naturalem, cum in nostras aedes quid immittitur aut aedificatur in nostro, publicam causam, quotiens leges aut senatus consulta constitutionesque principum per operis novi nuntiationem tuemur, impositiciam, cum quis postea, quam ius suum deminuit, alterius auxit, hoc est postea, quam servitutem aedibus suis imposuit, contra servitutem fecit.
And quite aptly Sextus Pedius defined that the cause of a notification of a new work is threefold: either natural, or public, or imposed. The natural [cause is], when something is let into our dwelling or is being built upon our own property; the public cause, whenever by means of a notification of a new work we protect the laws, or the decrees of the senate, and the constitutions of the emperors; the imposed [cause is], when someone, after he has diminished his own right and augmented another’s— that is, after he has imposed a servitude upon his own house— acts contrary to the servitude.
Meminisse autem oportebit, quotiens quis in nostro aedificare vel in nostrum immittere vel proicere vult, melius esse eum per praetorem vel per manum, id est lapilli ictum prohibere quam operis novi nuntiatione: ceterum operis novi nuntiatione possessorem eum faciemus, cui nuntiaverimus. at si in suo quid faciat, quod nobis noceat, tunc operis novi denuntiatio erit necessaria. et si forte in nostro aliquid facere quis perseverat, aequissimum erit interdicto adversus eum quod vi aut clam aut uti possidetis uti.
It ought to be remembered, however, that whenever someone wishes to build on what is ours or to let into or to throw into what is ours, it is better for him to prohibit it through the praetor or by hand, that is, within a pebble’s cast, than by a notice of new work (operis novi nuntiatio); for by a notice of new work we will make him to whom we have given notice a possessor. But if he is doing something on his own property that harms us, then a notice of new work will be necessary. And if by chance someone persists in doing something on our property, it will be most equitable to employ against him the interdict quod vi aut clam, or the interdict uti possidetis.
Praeterea generaliter praetor cetera quoque opera excepit, quorum mora periculum aliquod allatura est: nam in his quoque contemnendam putavit operis novi nuntiationem. quis enim dubitat multo melius esse omitti operis novi nuntiationem, quam impediri operis necessarii urguentem extructionem? totiens autem haec pars locum habet, quotiens dilatio periculum allatura est.
Moreover, in general the praetor also excepted other works, the delay of which would bring some danger: for in these cases too he considered the notification of new work to be disregarded. For who doubts that it is much better for the notification of new work to be omitted than for the urgent construction of necessary work to be impeded? And this provision has force as often as the postponement would bring danger.
Proinde si quis, cum opus hoc mora periculum allaturum esset, nuntiaverit opus novum vel si in cloacis vel ripa reficiendis aliquid fieret, dicemus apud iudicem quaeri debere, an talia opera fuerint, ut contemni nuntiatio deberet: nam si apparuerit vel in cloaca rivove eove, cuius mora periculum allatura esset, dicendum est non esse verendum, ne haec nuntiatio noceret.
Accordingly, if someone, when delay in this work would bring danger, has given notice of a new work, or if something were being done for the repairing of sewers or of a riverbank, we will say that it ought to be inquired before the judge whether the works were such that the notification should be disregarded: for if it shall have appeared either in a sewer or in a stream, or in that thing the delay of which would bring danger, it must be said that there is no need to fear that this notification would do harm.
Qui nuntiat, necesse habet demonstrare, in quo loco opus novum nuntiet, scituro eo cui nuntiatum est, ubi possit aedificare, ubi interim abstinendum est. totiens autem demonstratio facienda est, quotiens in partem fit nuntiatio: ceterum si in totum opus fiat, non est necesse demonstrare, sed hoc ipsum dicere.
He who gives notice has the necessity to demonstrate in what place he gives notice of a new work, so that the one to whom notice has been given may know where he can build and where in the meantime he must refrain. And a demonstration must be made as often as the notification is made for a part; but if it is made for the whole work, it is not necessary to demonstrate, but merely to say so.
Si in pluribus locis opus fiat, utrum una nuntiatio sufficiat an vero plures sint necessariae? et ait iulianus libro quadragensimo nono digestorum, quia in re praesenti fit nuntiatio, plures nuntiationes esse necessarias et consequenter plures remissiones.
If in several places work is required, does one notification suffice, or are several necessary? And Julianus, in the forty-ninth book of the Digest, says that, because the notification is made with respect to the matter at hand, several notifications are necessary and, consequently, several remissions.
Si is, cui nuntiatum erit, ex operis novi nuntiatione satisdederit repromiseritve aut per eum non fiet, quo minus boni viri arbitratu satisdet repromittatve, perinde est, ac si operis novi nuntiatio omissa esset. habet autem hoc remedium utilitatem: nam remittit vexationem ad praetorem veniendi et desiderandi, ut missa fieret nuntiatio.
If the person to whom notice will have been given, on a notice of a new work, has given security or has promised, or it will not be through him that, by the arbitrament of a good man, he fails to give security or to promise, it is just as if the notice of a new work had been omitted. habet autem hoc remedium utilitatem: for it remits the vexation of coming to the praetor and of petitioning that the notice be dismissed.
Si procurator autem opus novum mihi nuntiaverit et satis acceperit, deinde interdicto adversus eum utar, ne vim mihi faciat, quo minus aedificem, ex interdicto eum oportet iudicatum solvi satisdare, quia partes sustinet defensoris:
If, moreover, a procurator has notified me of a new work and has taken security, and thereafter I use an interdict against him, that he not use force against me so as to hinder my building, then under the interdict it is proper that he furnish security for payment of the judgment, because he sustains the part of a defender.
Si dominus opus novum nuntiaverit intra diem, quae stipulatione ex operis novi nuntiatione interposita comprehensa esset, committitur stipulatio: si praeterita ea die dominus nuntiaret, non committitur. nam et ipsi domino, cum semel nuntiaverit, non permittitur iterum nuntiare, quamdiu stipulatio ex operis novi nuntiatione teneret.
If the owner should give notice of a new work within the day, the stipulation which had been interposed by reason of the notification of the new work is committed; if the owner should give notice after that day has passed, it is not committed. For even to the owner himself, once he has given notice, it is not permitted to give notice again, so long as the stipulation arising from the notification of the new work binds.
Si in remissione a patre eius, qui opus novum nuntiaverat, procurator interveniat, id agere praetorem oportet, ne falsus procurator absenti noceat, cum sit indignum quolibet interveniente beneficium praetoris amitti.
If, in a remission granted by the father of him who had announced a new work (opus novum), a procurator should intervene, it is proper for the praetor to see to it that a false procurator does not harm the absentee, since it is improper that, with anyone whatsoever intervening, the praetor’s beneficium be lost.
Si prius, quam aedificatum esset, ageretur ius vicino non esse aedes altius tollere nec res ab eo defenderetur, partes iudicis non alias futuras fuisse ait, quam ut eum, cum quo ageretur, cavere iuberet non prius se aedificaturum, quam ultro egisset ius sibi esse altius tollere. idemque e contrario, si, cum quis agere vellet ius sibi esse invito adversario altius tollere, eo non defendente similiter, inquit, officio iudicis continebitur, ut cavere adversarium iuberet nec opus novum se nuntiaturum nec aedificanti vim facturum. eaque ratione hactenus is, qui rem non defenderet, punietur, ut de iure suo probare necesse haberet: id enim esse petitoris partes sustinere.
If, before it had been built, there were litigation that the neighbor has not the right to raise the house higher and the matter were not defended by him, he says the judge’s function would have been none other than to order the one against whom the action is brought to give security that he will not build before he has of his own accord brought an action that he has the right to raise it higher. And likewise conversely, if, when someone wished to bring an action that he has the right, the adversary being unwilling, to raise it higher, and that person did not defend, similarly, he says, it will fall within the office of the judge to order the adversary to give security that he will neither give notice of a “new work” nor use force against the one building. And by this method the one who does not defend the matter will be punished only to this extent: that he would be obliged to prove his own right; for that is to bear the petitioner’s part.
Interdictum hoc proponitur ex huiusmodi causis, edicto expressum est, ne post operis novi nuntiationem quicquam operis fiat, antequam vel nuntiatio missa fiat vel vice nuntiationis missae satisdatio de opere restituendo fuerit interposita. qui igitur facit, etsi ius faciendi habuit, tamen contra interdictum praetoris facere videtur et ideo hoc destruere cogitur.
This interdict is propounded in causes of this sort; it is expressed in the edict that, after a denunciation of a new work, nothing of the work be done before either the denunciation is remitted, or, in place of the remitted denunciation, a surety for restoring the work has been interposed. Therefore he who proceeds, even if he had the right to do it, nevertheless is seen to act against the praetor’s interdict and is therefore compelled to demolish it.
Plane si quaeratur, an in heredem eius, qui opus fecit, interdictum hoc competat, sciendum est labeonem existimasse in id quod ad eum pervenit dumtaxat dari oportere vel si quid dolo malo ipsius factum sit, quo minus perveniret. nonnulli putant in factum esse dandam quam interdictum, quod verum est.
Plainly, if it be asked whether this interdict is available against the heir of him who made the work, it should be known that Labeo thought it ought to be granted only for so much as has come to him, or if anything was done by his own dolus malus to prevent its coming. Some think that an in factum action should be given rather than the interdict, which is true.
Deinde ait praetor: " quem in locum nuntiatum est, ne quid operis novi fieret, qua de re agitur, si de ea re satisdatum est, quod eius cautum sit aut per te stat, quo minus satisdetur: quo minus illi in eo loco opus facere liceat, vim fieri veto".
Then the praetor says: "as to the place regarding which notice has been given that no new work be done—the matter at issue—if in that matter security has been furnished, to the extent that it has been provided, or it is owing to you that security is not furnished: in so far as it is not permitted to him to do work in that place, I forbid force to be used".
Si quis autem vult post opus novum nuntiatum impune aedificare, offerre debet satis nuntiatori: quod si fecerit, utrique consultum est tam ei qui nuntiavit, quoniam cautum habet de opere restituendo, quam ei cui nuntiatum est, quia molitio eius non impeditur: antequam enim caveat quidquid aedificaverit, interdicto restitutorio destruere compellitur.
But if anyone wishes, after a new work has been announced, to build with impunity, he ought to offer surety to the notifier; and if he does this, provision is made for both—both for the one who gave the announcement, since he has a guarantee concerning restoration of the work, and for the one against whom it was announced, because his construction is not impeded: for before he gives security, whatever he has built he is compelled to demolish by the restitutory interdict.
Sive autem res iudicetur sive res non defendatur, stipulatio in id committitur, ut res viri boni arbitratu restituatur: quod si ita restitutum non erit, quanti ea res erit, tantam pecuniam dabit, si hoc petitori placuerit.
Whether, however, the matter be adjudged or the matter be not defended, the stipulation is committed to this effect, that the thing be restored by the arbitration of a good man: but if it shall not have been thus restored, he shall give as much money as the thing will be worth, if this shall please the petitioner.
Idem dicit adiciendum esse in stipulatione, ut tantum praestetur, quanti uniuscuiusque intersit, si hoc maluerint: ceterum si ita fuerit, inquit, cautum " quanti ea res erit", dubitabitur, utrum ad totius corporis aestimationem haec verba referuntur an vero ad quod eius interest qui stipulatur. ego puto et si sic fuerit uni cautum " quanti ea res erit", defendi posse stipulationem sufficere: ad operis enim quantitatem ea refertur.
He likewise says that it should be added in the stipulation that performance be made only to the extent of how much it is in each one’s interest, if they prefer this: but if it has been thus provided, he says, " how much that thing will be worth", there will be doubt whether these words are referred to the valuation of the entire thing (the whole corpus) or rather to what it is in the interest of him who stipulates. I think that even if it has been thus provided to one person " how much that thing will be worth", it can be defended that the stipulation suffices: for it is referred to the quantity of the work.
Cui opus novum nuntiatum est, ante remissam nuntiationem opere facto decessit: debet heres eius patientiam destruendi operis adversario praestare: nam et in restituendo huiusmodi opere eius, qui contra edictum fecit, poena versatur, porro autem in poenam heres non succedit.
One to whom a new work has been denounced, having died after the work was done but before the denunciation was remitted: his heir must furnish to the adversary the sufferance for destroying the work; for even in restoring a work of this kind by the one who acted contrary to the edict a penalty is in play; moreover, the heir does not succeed to the penalty.
Is, cui opus novum nuntiatum erat, vendidit praedium: emptor aedificavit: emptorem an venditorem teneri putas, quod adversus edictum factum sit? respondit: cum operis novi nuntiatio facta est, si quid aedificatum est, emptor, id est dominus praediorum tenetur, quia nuntiatio operis non personae fit et is demum obligatus est, qui eum locum possidet, in quem opus novum nuntiatum est.
He, against whom notice of a new work had been given, sold the estate: the purchaser built: do you think the purchaser or the seller is to be held, because it has been done contrary to the edict? He responded: when a notification of a new work has been made, if anything has been built, the purchaser, that is, the owner of the property, is liable, because the notification of a work is not made to the person, and only he is obligated who possesses that place to which the new work has been notified.
Praetor ait: " dum ei, qui aberit, prius domum denuntiari iubeam". abesse autem videtur et qui in iure non est: quod et pomponius probat: verecunde autem praetorem denuntiari iubere, non extrahi de domo sua. sed " domum, in quam degit denuntiari" sic accipere debemus, ut et si in aliena domo habitet, ibi ei denuntietur. quod si nec habitationem habeat, ad ipsum praedium erit denuntiandum vel procuratori eius vel certe inquilinis.
The praetor says: " provided that I first order notice to be given at the house to him who will be absent". Moreover, he is considered absent also who is not in court: which Pomponius also approves. And the praetor, with propriety, orders that notice be given, not that he be dragged out of his own house. But " at the house in which he lives notice is to be given" we ought to take thus: that even if he lives in another’s house, there notice is to be given to him. But if he has no dwelling, notice must be given at the property itself, either to his procurator or at any rate to the tenants.
Totiens autem praetorem exigere denuntiationem intellegendum est, si sit cui denuntietur: ceterum si non sit, veluti quod hereditaria insula est nec dum hereditas adita, vel si heres non exstet nec inhabitetur, cessat haec pars edicti. est tamen tutius libellum ad ipsas aedes proponere: fieri enim potest, ut ita monitus defensor existat.
However, the praetor is to be understood to require notification only if there is someone to whom it may be notified: but if there is not, for instance because the tenement is hereditary and the inheritance has not yet been entered upon, or if no heir exists and it is not inhabited, this part of the edict ceases to apply. It is, however, safer to post a libellus at the house itself: for it can happen that, thus admonished, a defender may come forward.
In eum, qui quid eorum quae supra scripta sunt non curaverit, quanti ea res est, cuius damni infecti nomine cautum non erit, iudicium datur: quod non ad quantitatem refertur, sed ad id quod interest, et ad utilitatem venit, non ad poenam.
An action is granted against one who has not attended to any of those things which have been written above, for as much as the matter is worth, in respect of which, under the name of threatened damage (damnum infectum), no security will have been taken; and this is not referred to mere quantity, but to what the interest amounts to, and it looks to utility, not to penalty.
Si tam vicinum urbi municipium sit, ut magistratu se non interponente potuerit praetor vel praeses adiri, potest dici cessare hanc actionem adversus magistratus, quasi nihil intersit, cum in tua potestate fuerit a praetore vel praeside desiderare in possessionem mitti.
If the municipality be so near to the city that, with the magistrate not interposing himself, the praetor or the praeses could have been approached, it can be said that this action against magistrates ceases, as though it made no difference, since it was in your power to request from the praetor or the praeses to be sent into possession.
Si plures sint domini, qui cavere debent, et aliquis non caveat, in portionem eius mittetur. et contra si aliquot sint, qui caveri sibi desiderant, et alius pretiosiores, alius viliores habeat aedes, sive unius domus plures habeant dispares partes: tamen non magnitudine dominii quisque, sed aequaliter mittentur omnes in possessionem.
If there are several owners who ought to furnish security, and some one does not furnish it, he will be put into possession in respect of his share. And conversely, if there are several who desire that security be furnished to them, and one has more valuable houses, another less valuable, or several have unequal shares of a single house: nevertheless all will be put into possession equally, not each according to the magnitude of his ownership.
Evenit, ut nonnumquam damno dato nulla nobis competat actio non interposita antea cautione, veluti si vicini aedes ruinosae in meas aedes ceciderint: adeo ut plerisque placuerit nec cogi quidem eum posse, ut rudera tollat, si modo omnia quae iaceant pro derelicto habeat.
It happens that sometimes, though damage has been done, no action lies for us if no security has previously been interposed, for instance if the neighbor’s ruinous house has fallen onto my house: to such an extent that it has pleased most that he cannot even be compelled to remove the rubble, provided only that he treats everything lying there as derelict.
Praetor ait: " damni infecti suo nomine promitti, alieno satisdari iubebo ei, qui iuraverit non calumniae causa id se postulare eumve cuius nomine aget postulaturum fuisse, in eam diem, quam causa cognita statuero. si controversia erit, dominus sit nec ne qui cavebit, sub exceptione satisdari iubebo. de eo opere, quod in flumine publico ripave eius fiet, in annos decem satisdari iubebo.
The praetor says: " for damage not yet done (damnum infectum) to be promised in his own name, for another’s to give surety, I will order, to him who shall have sworn that he seeks it not for the sake of calumny, and that the one in whose name he will act would have sought it, until that day which, the case having been examined, I shall set. if there is a controversy whether the one who will give security is the owner or not, I will order that surety be given subject to an exception. concerning that work which will be done in a public river or on its bank, I will order surety to be given for ten years.
him, for whom security will not thus be given, I will order to go into possession of that thing, on account of which it will be demanded that security be given, and, when a just cause shall seem to exist, even to possess. against him who has neither given security nor allowed [the other] to be in possession nor to possess, I will grant an action, that he render as much as he ought to render, if for that matter security had been given by decree of mine or of him whose jurisdiction over that matter is what mine is. in the name of that thing, into whose possession I shall have put someone, if by him who will be in possession security shall be given for damage not yet done, I will order that he, to whom security shall not be given, be at the same time in possession".
Hoc edictum prospicit damno nondum facto, cum ceterae actiones ad damna, quae contigerunt, sarcienda pertineant, ut in legis aquiliae actione et aliis. de damno vero facto nihil edicto cavetur: cum enim animalia, quae noxam commiserunt, non ultra nos solent onerare, quam ut noxae ea dedamus, multo magis ea, quae anima carent, ultra nos non deberent onerare, praesertim cum res quidem animales, quae damnum dederint, ipsae extent, aedes autem, si ruina sua damnum dederunt, desierint extare.
This edict looks ahead to damage not yet done, whereas the other actions pertain to making good the damages that have occurred, as in the action under the Lex Aquilia and others. But as to damage actually done, nothing is provided by the edict: for since animals that have committed a noxa are not wont to burden us further than that we surrender them for the noxa, much more should things that lack soul not burden us beyond this, especially since animate things which have given damage still exist themselves, whereas buildings, if by their own collapse they have caused damage, have ceased to exist.
Unde quaeritur, si ante, quam caveretur, aedes deciderunt neque dominus rudera velit egerere eaque derelinquat, an sit aliqua adversus eum actio. et iulianus consultus, si prius, quam damni infecti stipulatio interponeretur, aedes vitiosae corruissent, quid facere deberet is, in cuius aedes rudera decidissent, ut damnum sarciretur, respondit, si dominus aedium, quae ruerunt, vellet tollere, non aliter permittendum, quam ut omnia, id est et quae inutilia essent, auferret, nec solum de futuro, sed et de praeterito damno cavere eum debere: quod si dominus aedium, quae deciderunt, nihil facit, interdictum reddendum ei, in cuius aedes rudera decidissent, per quod vicinus compelletur aut tollere aut totas aedes pro derelicto habere.
Whence the question arises, if before security were given the building fell down, and the owner does not wish to cart away the rubble and abandons it, whether there is any action against him. And Julian, when consulted, as to what the person into whose building the rubble had fallen ought to do, in order that the damage be repaired, if before the stipulation for threatened damage were interposed the defective building had collapsed, answered: if the owner of the building which fell should wish to remove it, it should be permitted only on condition that he remove everything, that is, even what would be useless, and that he must give security not only for future but also for past damage; but if the owner of the building which fell does nothing, an interdict should be granted to him into whose building the rubble had fallen, by which the neighbor will be compelled either to remove it or to hold the whole building as derelict.
Hoc amplius iulianus posse dici compellendum eum, ut etiam de praeterito damno caveret: quod enim re integra custoditur, hoc non inique etiam post ruinam aedium praestabitur. integra autem re unusquisque cogitur aut de damno infecto cavere, aut aedibus carere quas non defendit. denique, inquit, si quis propter angustias temporis aut quia rei publicae causa aberat non potuerit damni infecti stipulari, non inique praetorem curaturum, ut dominus vitiosarum aedium aut damnum sarciat aut aedibus careat.
Julian further says that it can be affirmed that he may be compelled to give security even for past damage: for what, while the matter is intact, is safeguarded, this will not unfairly also be exacted after the ruin of the buildings. While the matter is intact, however, each person is compelled either to give security for damage not yet done, or to be without the buildings which he does not maintain. Finally, he says, if someone, because of the straits of time or because he was absent on public business, has not been able to stipulate for damage not yet done, it will not be unfair for the praetor to take care that the owner of defective buildings either make good the damage or be without the buildings.
De his autem, quae vi fluminis importata sunt, an interdictum dari possit, quaeritur. trebatius refert, cum tiberis abundasset et res multas multorum in aliena aedificia detulisset, interdictum a praetore datum, ne vis fieret dominis, quo minus sua tollerent auferrent, si modo damni infecti repromitterent.
Concerning those things, however, which have been brought in by the force of a river, it is asked whether an interdict can be granted. Trebatius reports that, when the Tiber had overflowed and had carried many belongings of many people into others’ buildings, an interdict was given by the praetor, that no force be done to the owners so as to prevent them from taking up and carrying off what was theirs, provided only that they gave a guarantee for undischarged damage (damnum infectum).
Alfenus quoque scribit, si ex fundo tuo crusta lapsa sit in meum fundum eamque petas, dandum in te iudicium de damno iam facto, idque labeo probat: nam arbitrio iudicis, apud quem res prolapsae petentur, damnum, quod ante sensi, non contineri, nec aliter dandam actionem, quam ut omnia tollantur, quae sunt prolapsa. ita demum autem crustam vindicari posse idem alfenus ait, si non coaluerit nec unitatem cum terra mea fecerit. nec arbor potest vindicari a te, quae translata in agrum meum cum terra mea coaluit.
Alfenus likewise writes that, if from your estate a crust/clod has slipped into my estate and you demand it, a judgment ought to be granted against you for the damage already done, and Labeo approves this: for by the arbiter-judge before whom the things that have slipped down are sought, the damage which I previously suffered is not contained, and an action ought to be granted in no other way than that all the things which have slipped down be removed. Only then, moreover, does the same Alfenus say that the crust can be vindicated, if it has not coalesced nor made a unity with my soil. Nor can a tree be vindicated by you which, transplanted into my field, has coalesced with my soil.
Quaesitum est, si solum sit alterius, superficies alterius, superficiarius utrum repromittere damni infecti an satisdare debeat. et iulianus scribit, quotiens superficiaria insula vitiosa est, dominum et de soli et de aedificii vitio repromittere aut eum, ad quem superficies pertinet, de utroque satisdare: quod si uterque cesset, vicinum in possessionem mittendum.
It has been asked, if the soil is one person’s and the superficies another’s, whether the superficiary ought to promise for damage not yet done or to furnish surety. And Julian writes that whenever the insula held by right of superficies is defective, either the owner must promise with respect to the defect both of the soil and of the building, or the one to whom the superficies pertains must furnish surety for both; but if both should fail, the neighbor is to be put into possession.
Celsus certe scribit, si aedium tuarum usus fructus titiae est, damni infecti aut dominum repromittere aut titiam satisdare debere. quod si in possessionem missus fuerit is, cui damni infecti cavendum fuit, titiam uti frui prohibebit. idem ait eum quoque fructuarium, qui non reficit, a domino uti frui prohibendum: ergo et si de damno infecto non cavet dominusque compulsus est repromittere, prohiberi debet frui.
Celsus surely writes that, if the usufruct of your house is Titia’s, in the matter of threatened damage either the owner must repromise or Titia must furnish surety. And if the person to whom security against threatened damage ought to have been given has been sent into possession, he will prohibit Titia from using and enjoying. He likewise says that the usufructuary who does not repair is to be prohibited by the owner from using and enjoying: therefore, also, if she does not give security about threatened damage and the owner is compelled to repromise, she ought to be prohibited from enjoying.
Quamvis alienus usus fructus sit, dominum promittere oportere cassius ait. nisi proprietarius in totum repromittat vel fructuarius satisdat, mitti oportet in possessionem eum, cui non caveatur. sed nisi proprietario repromittenti fructuarius caveat, denegandam ei fructus petitionem iulianus scribit.
Although the usufruct belongs to another, Cassius says that the owner ought to promise. Unless the proprietor repromises in full or the usufructuary furnishes surety, he to whom caution is not given ought to be put into possession. But unless the usufructuary gives security to the proprietor who is repromising, Julian writes that his claim for the fruits is to be denied.
Quid de creditore dicemus, qui pignus accepit? utrum repromittere, quia suum ius tuetur, an satisdare, quia dominus non est, debebit? quae species est in contrario latere apud Marcellum agitata, an creditori pigneraticio damni infecti caveri debeat.
What shall we say about the creditor who has accepted a pledge? Ought he to repromise, because he is protecting his own right, or to give surety, because he is not the owner? This is the species argued on the opposite side by Marcellus, namely, whether security for damnum infectum ought to be given to the pledgee-creditor.
and Marcellus says that it is to no purpose that security be provided to him; and the same, that security must also be provided with respect to him who purchased not from the owner: for neither can a stipulation be entered into in the person of this man. nevertheless, I consider it most equitable that provision be made for this man, that is, for the creditor, by stipulation.
Cum inter aedes meas et tuas sint aliae aedes non vitiosae, videndum est, utrum tu solus mihi cavere debeas an vero et is, cuius aedes vitiosae non sunt, an ille solus, an ambo. et magis est, ut ambo cavere debeant, quia fieri potest, ut aedes vitiosae in aedes non vitiosas incidentes damnum mihi dent. quamvis possit quis dicere non vitio incolumium aedium hoc factum, si aliae in eas incidentes damni causam praebuerunt: sed cum prospicere sibi potuerit damni infecti cautionem, non prospexerit, merito convenietur.
Since between my buildings and yours there are other buildings that are not defective, it must be considered whether you alone ought to give me security, or indeed also the one whose buildings are not defective—whether he alone, or both. And it is more correct that both ought to give security, because it can happen that defective buildings, by striking against non‑defective buildings, may cause me loss. Although one could say that this was not done by the vice of the unharmed buildings, if other buildings, striking against them, supplied the cause of the loss: yet since he could have provided for himself by a cautio for damnum infectum (security for damage not yet done), and did not provide, he will rightly be sued.
Qui damni infecti caveri sibi postulat, prius de calumnia iurare debet: quisquis igitur iuraverit de calumnia, admittitur ad stipulationem, et non inquiretur, utrum intersit eius an non, vicinas aedes habeat an non habeat. totum tamen hoc iurisdictioni praetoriae subiciendum, cui cavendum sit, cui non.
Whoever demands that security against threatened damage be given to him must first swear as to calumny: whoever therefore has sworn as to calumny is admitted to the stipulation, and it will not be inquired whether it is in his interest or not, whether he has neighboring buildings or does not have them. Nevertheless, the whole of this is to be subjected to the praetorian jurisdiction, as to whom security should be given and to whom not.
De illo quaeritur, an inquilinis suis dominus aedium cavere possit. et sabinus ait inquilinis non esse cavendum: aut enim ab initio vitiosas aedes conduxerunt et habent quod sibi imputent, aut in vitium aedes inciderunt et possunt ex conducto experiri: quae sententia verior est.
It is asked about this, whether the owner of a house can give a guarantee to his tenants. And Sabinus says that no guarantee is to be given to tenants: for either from the beginning they rented a defective house and have something to impute to themselves, or the house fell into defect and they can proceed by an action ex conducto; which opinion is the truer.
Si quis iuxta monumentum aedificaverit vel iuxta aedificium suum monumentum fieri passus sit, de damno infecto ei postea cavendum non erit, quia rem illicitam admisit: alias autem si monumento aedificium noceat, in quo nihil sit, quod imputari possit ei, ad quem ius monumenti pertinet, cavendum est ei, ad quem ius monumenti pertinet.
If someone has built next to a monument, or has allowed a monument to be made next to his building, security for damage not yet done will not thereafter have to be given to him, because he admitted an illicit thing: otherwise, however, if the edifice harms the monument, in which there is nothing that can be imputed to the one to whom the right of the monument pertains, security must be given to the one to whom the right of the monument pertains.
Si quis opus novum nuntiaverit, an nihilo minus damni infecti ei caveri debeat, iulianus tractat. et magis probat caveri oportere: nam et ei, qui egerit ius adversario non esse altius tollere aedificium, caveri debere. item eum, adversus quem interdictum quod vi aut clam competit, cavere debere iulianus ait, quia non est cautum neque de vitio aedium neque de damno operis.
If someone has given notice of a new work, Julian discusses whether nonetheless security for threatened damage (damnum infectum) ought to be given to him. And he rather approves that it ought to be secured: for also to him who has brought an action that his adversary has not the right to raise the edifice higher, security ought to be given. Likewise Julian says that the one against whom the interdict “what by force or stealth” (quod vi aut clam) lies ought to give security, because there is no security provided either concerning the defect of the house or concerning the damage of the work.
Si quis, quia sibi non cavebatur, in possessionem aedium missus fuerit, deinde is cuius aedes fuerunt, cum praeterea alias aedes haberet, desideret ab eo, qui in possessionem missus est, ut sibi damni infecti harum aedium nomine, quarum in possessionem missus est, caveret, an sit audiendus, videamus. et iulianus scribit: is qui vitiosis aedibus cesserit, si integras retinuerit, numquid improbe ab eo, qui vitiosas aedes coepit possidere, cautionem exigit, cum ideo possessionem amiserit, quia ipse damni infecti satis non dederat? et sane parum probe postulat ab eo caveri sibi earum aedium nomine, quarum ipse cavere supersedit: quae sententia vera est.
If someone, because no caution was being taken for him, has been sent into possession of buildings, then the person to whom the buildings belonged, although he had other buildings besides, desires from him who was sent into possession that he should furnish to him a caution for damnum infectum (for threatened damage) in the name of those buildings into possession of which he was sent—whether he is to be heard, let us see. And Julian writes: he who has yielded the defective buildings, if he has retained the sound ones, does he not improperly exact a caution from him who has begun to possess the defective buildings, since for that very reason he lost possession, because he himself had not given sufficient security for damnum infectum? And indeed he rather improperly demands that security be given to him in respect of those buildings for which he himself refrained from giving security: which opinion is true.
Sed si eius nomine postulem, qui, si ipse postularet, iurare non compelleretur, veluti patronus vel parens, dicendum est locum iuriiurando non esse: de quo enim ille non iuraret, nec qui vice eius postulat in hac stipulatione debet iurare.
But if I bring suit in the name of one who, if he were bringing suit himself, would not be compelled to swear—such as a patron or a parent—it must be said that there is no place for an oath: for in respect of what he would not swear, neither ought he who sues in his stead, under this stipulation, to swear.
Huic stipulationi debet dies esse insertus, intra quem si quid damni contigerit, cautio locum habet: neque enim in infinitum obligatus esse debet stipulatione. ipse igitur praetor diem dabit stipulationi, aestimatione habita ex causa et ex qualitate eius damni, quod contingere speratur.
A day ought to be inserted into this stipulation, within which, if any damage should occur, the caution has effect: for one ought not to be obligated by a stipulation into infinity. The praetor himself, therefore, will give a day to the stipulation, an estimation being had from the case and from the quality of that damage which is hoped/expected to occur.
Si vero sine adiectione diei stipulatio fuerit interposita, si quidem ex conventione, quandoque fuerit commissa, ex stipulatu agitur, si vero per errorem, magis est illud dicendum finito die, in quem alioquin caveri solet, desiderandum esse a praetore, ut liberetur.
But if a stipulation has been interposed without the addition of a day, then, if indeed by agreement, whenever it has been incurred, action is brought ex stipulatu; but if through error, it is rather to be said that, when the day has ended, for which otherwise one is wont to provide security, it should be requested from the praetor that he be released.
Deinde ait praetor: " de eo opere, quod in flumine publico ripave eius fiet, in annos decem satisdari iubebo". hic exigitur satisdatio et tempus stipulationi praestituit idcirco, quia in publico fit: cum autem in alieno fiat, satisdationem praetor iniungit.
Then the praetor says: "As to that work which will be done in a public river or on its bank, I will order security to be given for 10 years." Here security is required, and a time is set to the stipulation for this reason, because it is done on public property; but when it is done on another’s property, the praetor imposes security.
Notandum, quod non etiam de loci vitio, sed de operis tantum cavetur, quamvis, si in privato fiat, et de loci et de operis vitio caveatur: sed cum locus publicus sit, non erat necesse ibidem opus facienti de alio vitio quam operis satisdare damni infecti.
It must be noted that provision is made not also for the defect of the place, but only for the defect of the work; although, if it be done on private property, provision is made both for the defect of the place and of the work: but since the place is public, it was not necessary for the one doing the work there to give surety for damage not yet done (damnum infectum) for any defect other than that of the work.
Si publicus locus publice reficiatur, rectissime labeo scribit, eoque iure utimur, de damno infecto non esse cavendum, si quid vitio loci aut operis fiat: certe legem dandam operis talem, ne quid noceat vicinis damnive detur.
If a public place is repaired at public expense, Labeo writes most correctly—and we follow that rule—that security is not to be required concerning threatened damage, if anything happens by the defect of the place or of the work: certainly a regulation must be imposed upon the work of such a kind that it do no harm to the neighbors nor that any damage be inflicted.
An vero in totas aedes missio locum habeat, videamus. et extat sabini sententia in totas aedes mittendum: alioquin si ex superficie, inquit, damnum timeatur, non habebit res exitum, nec profuturum in possessionem eius rei mitti, quam quis possidere non possit aut ei non expediat: et verior est sabini sententia.
Whether indeed a sending into the entire premises should have place, let us see. And there stands Sabinus’s opinion that one must be sent into the entire premises: otherwise, if, he says, damage is feared from the superstructure, the matter will have no exit, nor will it be of profit to be sent into possession of that thing which someone cannot possess or to which it is not expedient: and Sabinus’s opinion is the truer.
Sed si in plures partes divisa domus sit, utrum in partem an in totam domum possidendam mitti quis debeat, videamus. si tam ampla domus sit, ut et spatia inter vitiosam partem intercedant et eam quae vitium non facit, dicendum in eam solam partem mitti: si vero unita sit contextu aedificiorum, in totam. itaque et in spatiosis domibus melius dicetur in eam partem domus mittendum, quae vitiosae parti unita est.
But if a house has been divided into several parts, let us consider whether one ought to be sent to take possession of a part or of the whole house. If the house is so ample that spaces intervene between the vitiated part and that which does not constitute the vice, it must be said that he is to be sent into that part alone; but if it is united by the continuity of the buildings, into the whole. And thus even in spacious houses it will be better said that one must be sent into that part of the house which is united to the vitiated part.
Si plures sunt, qui postulent ut caveatur, omnes mitti in possessionem solent. idemque labeo probat et si prius quis in possessionem missus sit et alius mitti desideret: nam non spectabimus ordinem, sed habebunt ambo possessionem. quod si iam prior possidere iussus sit et alius damni infecti caveri desideret, tunc nisi cavetur, mittetur in possessionem posterior.
If there are several who demand that security be provided, all are wont to be sent into possession. And Labeo likewise approves this even if someone has previously been sent into possession and another desires to be sent: for we will not regard the order, but both will have possession. But if the former has already been ordered to possess and another desires that security be provided for threatened damage (damnum infectum), then, unless security is furnished, the latter will be sent into possession.
Si ante hoc decretum alius quoque in possessionem missus fuerit, aequaliter ambo aedium fiunt domini, scilicet cum iussi fuerint possidere. si vero iam constituto domino eo, qui primus in possessionem missus est, titius damni infecti sibi caveri desiderabit, cessante primo cavere solus titius erit in possessione.
If before this decree another also has been sent into possession, equally both become owners of the house, namely when they have been ordered to possess. But if, with the owner already established in the person of him who was first sent into possession, Titius desires that security be given to him for damage not yet done, the first, failing to give security, Titius alone will be in possession.
Cum autem plures mittuntur in possessionem, aequaliter mittuntur, non pro rata damni, quod unumquemque contingeret, et merito: nam et cum unus mittitur, non pro portione damni mittitur, sed in totum: cum igitur plures mittuntur, aequaliter omnes quasi in totum missi concursu partes habebunt.
But when several are sent into possession, they are sent equally, not pro rata of the damage that would befall each one, and with good reason: for even when a single person is sent, he is not sent for a portion of the damage, but for the whole: therefore, when several are sent, all equally, as if sent for the whole, will have shares by concurrence.
Sed si quis eorum missus in possessionem sumptum fecerit, deinde iubeatur possidere, an sumptum consequi possit is qui fecit et quo iudicio? et placet communi dividundo iudicio consequi eum posse.
But if any one of them, having been sent into possession, has incurred expense, and then is ordered to possess, whether the one who incurred the expense can recover the expense, and by what action? And it is held that he can recover by the action for dividing common property (actio communi dividundo).
Non autem statim ubi misit praetor in possessionem, etiam possidere iubet, sed tunc demum, cum iusta causa videbitur ( ergo intervallum aliquod debebit intercedere), quod aut pro derelicto aedes longo silentio dominus videatur habuisse aut emisso in possessionem et aliquamdiu immorato nemo caveat.
But not immediately, when the praetor has put someone into possession, does he also order him to possess, but only then, when a just cause shall seem to exist (therefore some interval ought to intervene), because either by long silence the owner may seem to have held the house as if abandoned, or, after one has been sent into possession and has remained for some time, no one offers security.
Si forte dominus rei publicae causa abest aut ex alia iusta causa aut in ea sit aetate cui subveniri solet, probandum est non debere praetorem festinare ad decernendum, ut iubeat possidere. sed etsi decreverit, nemo dubitat in integrum restitutionem indulturum.
If perchance the owner is absent for the sake of the commonwealth or from some other just cause, or is in that age to which aid is usually afforded, it should be approved that the praetor ought not to hasten to decree that he order possession. But even if he should decree, no one doubts that he will grant in integrum restitution.
Item quaeritur in pigneraticio creditore, an pignoris persecutio denegetur adversus eum, qui iussus sit possidere. et magis est, ut, si neque debitor repromisit neque creditor satisdedit, pignoris persecutio denegetur. quod et in fructuario recte celsus scribit.
Likewise it is asked, in the case of a pignoratitious creditor, whether pursuit of the pledge should be denied against one who has been ordered to possess. And the sounder view is that, if neither the debtor has repromised nor the creditor has furnished surety, pursuit of the pledge is to be denied. Which Celsus also rightly writes with respect to a usufructuary.
Si de vectigalibus aedibus non caveatur, mittendum in possessionem dicemus nec iubendum possidere ( nec enim dominium capere possidendo potest), sed decernendum, ut eodem iure esset, quo foret is qui non caverat: post quod decretum vectigali actione uti poterit.
If no caution be given concerning the vectigalian buildings, we shall say that one must be sent into possession and not ordered to possess (for by possessing he cannot take dominium), but that it must be decreed that he be in the same right as he would be who had not given caution: after which decree he will be able to use the vectigal action.
Eleganter quaeritur, si, dum praetor de danda stipulatione deliberat, damnum contigerit, an sarciri possit. et missio quidem cessabit: praetor tamen decernere debet, quidquid damni contigerit, ut de eo quoque caveatur, aut, si putat, quod utiliter actionem daturus sit, decernat.
It is elegantly asked, if, while the praetor deliberates about granting a stipulation, damage has occurred, whether it can be made good. And the missio will indeed cease; nevertheless the praetor ought to decree that whatever damage has occurred, security be taken for that as well, or, if he thinks that he will usefully grant an action, let him so decree.
Si quis damni infecti in possessionem missus sit, fulcire eum et reficere insulam debere sunt qui putent eamque culpam praestare exemplo eius, qui pignori accepit. sed alio iure utimur: cum enim ob hoc tantum missus sit, ut vice cautionis in possessione sit, nihil ei imputari, si non refecerit.
If someone has been sent into possession on account of damage not yet effected, there are those who think that he ought to shore it up and repair the insula, and to be liable for culpa on that account, by the example of one who has received a thing in pledge. But we use another ius: for since he has been sent for this only, that he may be in possession in the stead of a security (cautio), nothing is imputed to him if he has not repaired it.
Item videamus, si ei cautio offeratur, posteaquam missus est, an non prius decedere debeat, quam si ei caveatur etiam de eo damno, quod contigit, posteaquam missus est in possessionem? quod quidem magis probatur: repetita igitur die promittendum erit. hoc amplius de impensis quoque, si quas fecerit, erit ei cavendum.
Likewise let us consider: if security is offered to him after he has been sent, is it not that he ought not to depart before he is also secured for that loss which has occurred after he was sent into possession? This indeed is the more approved view: therefore, with the day repeated, it will have to be promised. Furthermore, he must also be secured for expenses, if he has incurred any.
Illud quaeritur, ex quo tempore damni ratio habeatur, utrum ex quo in possessionem ventum est an vero ex quo praetor decrevit, ut eatur in possessionem. labeo, ex quo decretum est: sabinus, ex quo ventum est in possessionem: ego puto causa cognita modo hanc modo illam sententiam probandam. plerumque enim subvenitur etiam ei, qui missus in possessionem aliqua ex causa aut non venit aut tardius venit in possessionem.
The question is, from what time the reckoning of the loss is to be made, whether from the time when entry into possession was effected, or rather from the time when the praetor decreed that one should go into possession. Labeo: from when it was decreed; Sabinus: from when entry was made into possession; I think that, once the cause has been examined, now this opinion, now that, should be approved. For generally relief is afforded even to one who, though sent into possession, for some reason either did not come into possession or came into possession more tardily.
Posteaquam autem quis possidere iure dominii a praetore iussus est, nequaquam locus erit cautionis oblationi: et ita labeo: ceterum nullus, inquit, finis rei invenietur: et est hoc verissimum seposito eo, quod quibusdam vel aetate vel qua alia iusta causa subvenitur.
After someone has been ordered by the praetor to possess by the right of ownership, there will by no means be room for the tender of a security (cautio): and so says Labeo; otherwise, he says, no end of the matter will be found. And this is most true, setting aside the fact that assistance is afforded to some either by reason of age or by some other just cause.
Si iam ruerunt aedes, an in possessionem ruinae vel areae mittendus sit nihilo minus is, cui cautum non est, videamus. et magis est, ut mitti debeat, et ita labeo: sed adicit, si, posteaquam decreverit praetor eum in possessionem mittendum, tunc aedes deciderint: et puto labeonis sententiam veram. proinde et si refecit aliquid, erit probandum non prius eum discessurum, quam si ei sarciatur et de praeterito caveatur.
If the house has already collapsed, let us consider whether nonetheless the one for whom no security has been provided must be sent into possession of the ruins or of the area. And the better view is that he ought to be sent, and so Labeo; but he adds this: if, after the praetor has decreed that he be sent into possession, then the house collapses. And I think Labeo’s opinion is true. Accordingly, even if he has repaired something, it must be held that he is not to depart before it is made good to him and security is given for what is past.
Moreover, he can also, by an action in factum, recover what he has expended, but no more than what shall have been fixed by the arbitration of a good man; the same is the case also if another, at my order or at my request, has done any of those things without fraudulent intent, and on that account I have been condemned, or I have paid, without fraudulent intent.
Si quis metu ruinae decesserit possessione, si quidem, cum adiuvare rem non posset, id fecit, labeo scribit integrum ius eum habere, perinde ac si in possessione perseverasset: quod si, cum posset succurrere, maluit relinquere, amisisse eum praetoris beneficium neque, si postea succurri sibi velit, audiendum eum. cassius autem ait, si metu ruinae recesserit, non hoc animo, ut aedificia derelinqueret, restituendum in possessionem: eum tamen, qui missus in possessionem non accesserit, si aedificia ruerint, beneficium praetoris amisisse scribit. hoc ita accipiendum erit, si venire in possessionem neglexit, non si dum venit ruerunt.
If someone has departed from possession through fear of collapse, then indeed, if he did this when he could not assist the matter, labeo writes that he has an intact right, just as if he had persevered in possession; but if, when he could succor it, he preferred to abandon it, he has lost the praetor’s beneficium, nor, if afterward he should wish to have help afforded to himself, is he to be heard. cassius, however, says that if he withdrew through fear of collapse, not with this mind, to abandon the buildings, he is to be restored into possession; nevertheless, he writes that one who, having been put in possession, did not come, if the buildings should collapse, has lost the praetor’s beneficium. this will have to be taken thus: if he neglected to come into possession, not if, while he was coming, they collapsed.
Si quis ex hoc edicto a praetore in possessionem missus non est admissus, in factum actione uti poterit, ut tantum praestetur ei, quantum praestari ei oporteret, si de ea re cautum fuisset: extenditur enim actio in id tempus, quo damnum committitur.
If anyone, under this edict, after being sent by the praetor into possession, is not admitted, he may make use of an action in factum, so that there be rendered to him as much as ought to be rendered to him, if security had been taken about that matter; for the action is extended to that time at which the loss is incurred.
Ei, cuius usus fructus aedium est, de vitio earundem aedium caveri non oportet, etsi alias vicinas habeat, quia reficiendi habet facultatem: nam qui viri boni arbitratu uti deberet, reficiendi quoque potestatem consequitur. ergo nec proprietarius audiri debet, si velit sibi caveri a fructuario aedium nomine, quas vicinas fructuario habeat, quia habet cum fructuario actionem, ut viri boni arbitratu is fruatur.
He whose usufruct is of buildings need not be provided security on account of the defect of those same buildings, even if he has other adjacent ones, because he has the faculty of repairing: for he who ought to use at the arbitrament of a good man also obtains the power of repairing. Therefore the proprietor likewise ought not to be heard, if he wishes to have security given him by the fructuary with respect to buildings which he has adjacent to the fructuary, because he has an action against the fructuary, that he enjoy according to the arbitrament of a good man.
Ei, qui in conducto solo superficiem imposuit, dominus soli, quod vitio soli damnum futurum sit, cavere non debebit nec soli domino superficiarius, quia invicem ex conducto et locato habent actiones: in quas tamen actiones ultra culpam nihil venit. plus autem in stipulationem venit damni infecti, quod quidem vitium eius esse dicitur.
He who has imposed a superficies on leased ground—the owner of the soil will not have to give security that damage will occur by reason of a defect of the soil, nor will the superficiary to the owner of the soil, because they have reciprocal actions from hiring and letting; yet in those actions nothing is recoverable beyond fault. But more is encompassed in the stipulation for undischarged damage (damnum infectum), namely what is said to be the soil’s own defect.
Si is, qui unas aedes habebat, stipulatus fuerit, deinde vicinas comparaverit, an earum quoque nomine, quas post interpositam stipulationem comparasset, promissorem obligaret, quaesitum est. iulianus scribit videndum, ne earum dumtaxat nomine cautum habeat, de quibus inter eum et promissorem initio actum fuerit. cui consequens videri posse, ut et, cum aedium communium nomine duo socii stipulentur, de eo dumtaxat damno caveri videatur, quod in parte aedium cuique socio datum fuerit.
If one who had a single house should have stipulated, and thereafter acquired adjacent premises, it has been asked whether he would bind the promisor also in respect of those which he had acquired after the stipulation was interposed. Julian writes that it must be considered that he has provision only in the name of those about which, between him and the promisor, it was dealt with at the beginning. To which it may seem consequent that likewise, when two partners stipulate in the name of common premises, it appears that security is provided only for that damage which has been inflicted in the part of the premises belonging to each partner.
Sed quid fiet, si venditor sine culpa stipulari non potuerit et ob hoc emptor stipulatus fuerit? nonne damnum patitur? an hoc damnum in aliena re acciderit, revolvitur autem ad emptorem, quia actionem ex empto non habet?
But what will happen, if the seller, through no fault, has been unable to stipulate, and on this account the buyer has stipulated? Does he not suffer a loss? Or, since this loss has occurred in another’s property, is it however shifted back upon the buyer, because he does not have an action on the purchase (actio ex empto)?
but in this case the stipulation avails nothing, except as to what happens after delivery, for, while it is under the seller’s custody, he ought to be the one to stipulate and to render to the buyer every diligence: and what can be sought by another action is by no means brought into the stipulation for damage not yet done.
Sed si venditor interposuerit stipulationem, etiam id damnum continebit, quod post traditionem emptori contigerit. quod esse inquissimum aristo ait, quoniam, si emptor quoque damni infecti stipulatus esset, duobus promissor eiusdem nomine obligaretur: nisi forte id contra se habeat, quia in hoc fit stipulatio, quanti ea res erit: ut possit videri nihil interesse iam venditoris.
But if the seller has interposed a stipulation, it will also comprise that damage which befalls the buyer after delivery. Aristo says this is most iniquitous, since, if the buyer likewise had stipulated for damage not yet done (damni infecti), the promisor would be bound to two persons under the same head: unless perhaps he has this against himself, because in this matter the stipulation is made for how much that thing will be worth, so that it can seem that nothing now is of interest to the seller.
Stipulatione damni infecti interposita sabini sententia vera est existimantis, ut, si, dum aedificatur intra diem stipulationi comprehensum, supra parietem meum domus deciderit eumque vitiaverit, licet post diem stipulationis paries decidat, possim agere, quia damnum iam tunc acceperim, cum paries vitiosus factus sit. nec quicquam obstare, quo minus etiam antequam decidat agi possit: et, si ita concussus sit paries, ut nulla ratione recipi possit ideoque deponendus est, non minoris litem aestimandam, quam si decidisset.
With a stipulation for unrealized damage interposed, Sabinus’s opinion is true, holding that, if, while building is going on within the day encompassed by the stipulation, a house should collapse upon my wall and vitiate it, although the wall collapses after the day of the stipulation, I can bring an action, because I have already then received the damage, when the wall was made defective. Nor does anything stand in the way to prevent an action from being brought even before it collapses: and, if the wall has been so shaken that it can by no means be restored and therefore must be taken down, the suit is not to be assessed at any lesser value than if it had fallen.
Non solum autem eum punit praetor, qui in possessione esse, sed etiam eum, qui possidere passus non fuerit, cum alioquin, si is, qui iussu praetoris coeperat possidere et possidendo dominium capere, aut non admissus aut eiectus inde fuerit, utile interdictum unde vi vel publicianam actionem habere potest. sed si in factum actione egerit, his actionibus experiri non potest, cum praetor id agat, ne damnum faciat actor, non ut in lucro versetur.
Not only does the praetor punish him who is in possession, but also him who has not allowed possession to be taken; since otherwise, if the one who by order of the praetor had begun to possess and by possessing to acquire dominion, has either not been admitted or has been ejected from there, he can have a useful interdict unde vi or the Publician action. But if he sues by an action in factum, he cannot try these actions, since the praetor aims that the actor not suffer loss, not that he should be engaged in profit.
Eorum, qui bona fide absunt, in stipulatione damni infecti ius non corrumpitur, sed reversis cavendi ex bono et aequo potestas datur, sive domini sint sive aliquid in ea re ius habeant, qualis est creditor et fructuarius et superficiarius.
Of those who are absent in good faith, in the stipulation of damnum infectum the right is not corrupted; but, upon their return, the power of giving security according to what is good and equitable is granted, whether they are owners or have some right in the matter, such as a creditor, a usufructuary, and a superficiary.
Inter fructuarium et dominum proprietatis ita damni infecti cautio locum habet, si fructuarius quidem de soli vitio caveri sibi desideret, dominus vero proprietatis de operis vitio, si quid fructuarius aedificet: nam de ruina aedium neuter ab altero cautionem desiderare potest, fructuarius ideo, quia refectio aedium ad eius ipsius onus non pertinet, proprietarius ideo, quia usitata stipulatio, qua de re restituenda fructuarius cavet, ad hunc quoque casum porrigitur.
Between the usufructuary and the owner of the property, the security for threatened damage has place thus: if the usufructuary desires to have himself secured against a defect of the soil, and the owner of the property against a defect of the works, if the usufructuary builds anything; for as to the collapse of buildings, neither can demand security from the other—the usufructuary, because the repair of the buildings does not pertain to his own burden; the proprietor, because the customary stipulation, by which the usufructuary gives security for restoring the thing, extends to this case as well.
Si filius familias inquilinus sit, videamus, an damni infecti nomine in possessionem aedium vicinarum mittendus sit ( quaeritur enim, an filius familias non videtur damnum pati, si res peculiares sint) et pater possit stipulari, si quid ei damni fiat. et placet utrumque eorum in possessionem mitti, nisi sic filius conduxerat, ut eius periculo aedes essent: tunc enim, quia solus tenetur ex locato, recte dicetur ipsum mittendum in possessionem, nisi ei caveatur.
If a son under paternal power is a tenant, let us consider whether, under the title of damage not yet done (damnum infectum), he ought to be sent into possession of the neighboring premises (for the question is whether a filius familias is not regarded as suffering damage if the things are peculium), and whether the father can stipulate, if any damage be done to him. And it is held that either of them is to be sent into possession, unless the son had so leased that the buildings were at his risk: for then, because he alone is bound on the lease (ex locato), it will rightly be said that he himself must be sent into possession, unless security is given to him.
Si proprietarius de damno infecto repromisisset vel forte aliquid praestitisset aut contra fructuarius aliquid praestitit, iniquum est alterum sine damno uti aedibus aut aedes habere. et si optulerit proprietarius aliquid, non est fructuario permittendum uti, nisi contulerit: idemque fructuario praestandum est, ut proprietarius cogatur ei conferre. ergo et solum retinebit fructuarius, si aedes ceciderint, donec praestetur ei damnum, ut, quod haberet vicinus missus in possessionem, id fructuarius habeat, qui damnum vicino sarciit.
If the proprietor has promised anew concerning damnum infectum, or perhaps has rendered something, or, conversely, the usufructuary has rendered something, it is inequitable that the other should use the premises without bearing the loss or should hold the premises. And if the proprietor has tendered something, the usufructuary is not to be permitted to use, unless he has contributed; and the same must be afforded to the usufructuary, namely, that the proprietor be compelled to contribute to him. Therefore the usufructuary will even retain the soil, if the house has fallen, until the damage is made good to him, so that what a neighbor put into possession would have, that the usufructuary may have—he who has made good the neighbor’s damage.
Plautius. si ab eo, quem dominum esse negarem, vellem sub hac exceptione " si dominus non esset" satisdari, ab eo vero, quem dominum esse dicerem, pure repromitti, constitit non debere me impetrare, sed debere me eligere, a quo velim mihi caveri.
Plautius. If, from him whom I denied to be the owner, I wished to have surety furnished under this exception, “if he were not owner,” but from him, on the other hand, whom I said was owner, to have it promised purely (unconditionally), it has been established that I ought not to obtain this, but that I ought to choose from whom I wish security to be given to me.
Fluminum publicorum communis est usus, sicuti viarum publicarum et litorum. in his igitur publice licet cuilibet aedificare et destruere, dum tamen hoc sine incommodo cuiusquam fiat. propter quod operis dumtaxat nomine cum satisdatione cavetur, de vitio loci nihil cavetur, hoc est operis, quod quis facit.
the use of public rivers is common, just as of public roads and of shores. on these, therefore, it is publicly permitted for anyone to build and to destroy, provided, however, that this be done without inconvenience to anyone. for which reason provision is made only in the name of the work, with a giving of surety; about a defect of the place nothing is provided— that is, it is with respect to the work which someone makes.
But if damage is feared from the defect of the place, it is by no means to be said that a damnum infectum stipulation ought to be interposed: for who doubts that there is no one from whom one could stipulate, since, with no one doing anything, the public place itself would cause damage by its own nature?
Sed ut ne quid aedium loci operisve vitio damnum factum sit, stipulatio interponitur de eo sine satisdatione: quae non solum ad totas aedes, sed etiam ad partem aedium pertinet. vitium autem aedium et loci esse labeo ait, quod accidens extrinsecus infirmiores eas facit: denique nemo dixit palustris loci vel harenosi nomine quasi vitiosi committi stipulationem, quia naturale vitium est: et ideo nec ea stipulatio interponitur neque interposita committetur.
But lest any damage be done by reason of a defect of the house, the site, or the work, a stipulation is interposed concerning this without suretyship: which pertains not only to the whole house but also to a part of the house. Moreover, Labeo says that a defect of the house and of the site is that which, occurring from without, makes them weaker; finally, no one has said that a stipulation is incurred under the designation of a marshy or sandy site as if defective, because it is a natural defect; and therefore neither is such a stipulation interposed nor, if interposed, will it be incurred.
Haec stipulatio utrum id solum damnum contineat, quod iniuria fit, an vero omne damnum, quod extrinsecus contingat? et labeo quidem scribit de damno dato non posse agi, si quid forte terrae motu aut vi fluminis aliove quo casu fortuito acciderit.
Does this stipulation contain only that damage which is done injuriously, or rather every damage which befalls from without? And Labeo indeed writes that it is not possible to bring an action for damage done, if perchance something has happened by an earthquake or by the force of a river or by some other fortuitous event.
Servius quoque putat, si ex aedibus promissoris vento tegulae deiectae damnum vicino dederint, ita eum teneri, si aedificii vitio id acciderit, non si violentia ventorum vel qua alia ratione, quae vim habet divinam. labeo et rationem adicit, quo, si hoc non admittatur, iniquum erit: quo enim tam firmum aedificium est, ut fluminis aut maris aut tempestatis aut ruinae incendii aut terrae motus vim sustinere possit?
Servius also thinks that, if from the promissor’s house roof-tiles, cast down by the wind, have given damage to a neighbor, he is held liable only if it happened by a defect of the building, not if by the violence of the winds or by some other cause which has a divine force (an act of God). labeo also adds a rationale, that, if this is not admitted, it will be inequitable: for what building is so firm that it can withstand the force of a river or the sea or a tempest or the collapse from a conflagration or an earthquake?
Idem servius putat, si controversia aquae insulam subverterit, deinde stipulatoris aedificia ceciderint, nihil eum ex stipulatu consecuturum, quia id nec operis nec loci vitio factum est. si autem aqua vitiet fundamenta et sic aedificium ruisset, committi stipulationem ait: multum enim interesse, quod erat alioquin firmum, vi fluminis lapsum sit protinus, an vero ante sit vitiatum, deinde sic deciderit. et ita labeo probat: etenim multum interesse, quod ad aquiliam pertinet, sanum quis hominem occidat an vero factum inbecilliorem.
The same Servius thinks that, if a dispute about water has overturned (undermined) an island, and then the stipulator’s buildings have fallen, he will obtain nothing under the stipulation, because that was done by the defect neither of the work nor of the place. But if the water vitiates the foundations and thus the building has collapsed, he says the stipulation is committed: for it makes much difference whether something which was otherwise firm has been swept away at once by the force of the river, or rather was first vitiated and then so fell down. And Labeo approves thus: for indeed it makes much difference, as pertains to the Aquilian law, whether one kills a man who is sound, or rather one who has been made more feeble.
Quamquam autem stipulatio committitur, cum vitio operis damnum factum sit, tamen, si opus factum est ab eo, quem promissor prohibere non potuit, stipulatio non committetur. plane si prohibere potuit, committetur. sed si quis promissoris nomine fecerit vel eius pro quo promissum est aut alius, qui prohiberi potuerit, stipulatio ista committetur.
Although the stipulation is incurred when damage has been done through a defect of the work, nevertheless, if the work was done by someone whom the promisor could not prevent, the stipulation will not be incurred. Clearly, if he could have prevented it, it will be incurred. But if someone acted in the promisor’s name, or he for whom the promise was made, or another who could have been prevented, this stipulation will be incurred.
Item apud vivianum relatum est, si ex agro vicini arbores vi tempestatis confractae in meum agrum deciderint eoque facto vitibus meis vel segetibus nocent vel aedificia demoliunt, stipulationem istam, in qua haec comprehenduntur " si quid arborum locive vitio acciderit", non esse utilem, quia non arborum vitio, sed vi ventorum damnum mihi datum est. plane si vetustate arborum hoc fiebat, possumus dicere vitio arborum damnum mihi dari.
Likewise, it is reported in Vivianus that, if from a neighbor’s field trees, broken by the force of a storm, have fallen into my field, and by that fact injure my vines or crops or demolish buildings, that stipulation, in which the following is comprehended, "if anything shall have happened by the vice of the trees or of the place," is not useful, because the damage has been given to me not by the vice of the trees but by the force of the winds. Clearly, if this was happening by the old age of the trees, we can say that damage is being given to me by the vice of the trees.
Idem ait, si damni infecti aedium mearum nomine tibi promisero, deinde hae aedes vi tempestatis in tua aedificia ceciderint ^ deciderint^ eaque diruerint, nihil ex ea stipulatione praestari, quia nullum damnum vitio mearum aedium tibi contingit: nisi forte ita vitiosae meae aedes fuerint, ut qualibet vel minima tempestate ruerint. haec omnia vera sunt.
He likewise says, if for damage not yet done in the name of my buildings I have promised you, and then these buildings by the force of a storm have fallen ^ have fallen down^ onto your buildings and have demolished them, nothing is to be rendered under that stipulation, because no damage befalls you by the vice of my buildings: unless perhaps my buildings were so defective that in any, even the least, storm they would collapse. All these things are true.
Item videamus, quando damnum dari videatur: stipulatio enim hoc continet, quod vitio aedium loci operis damnum fit. ut puta in domo mea puteum aperio, quo aperto venae putei praecisae sunt: an tenear? ait trebatius non teneri me damni infecti: neque enim existimari operis mei vitio damnum tibi dari in ea re, in qua iure meo usus sum.
Likewise, let us see when damage is deemed to be inflicted: for the stipulation contains this, that damage occurs by the defect of buildings, of the place, or of a work. For instance, in my house I open a well, and, once it is opened, the veins of your well are cut off: am I liable? Trebatius says that I am not liable under the stipulation for damnum infectum; for it is not considered that damage is being inflicted on you by the fault of my work in a matter in which I have exercised my own right.
Proculus ait, cum quis iure quid in suo faceret, quamvis promisisset damni infecti vicino, non tamen eum teneri ea stipulatione: veluti si iuxta mea aedificia habeas aedificia eaque iure tuo altius tollas, aut si in vicino tuo agro cuniculo vel fossa aquam meam avoces: quamvis enim et hic aquam mihi abducas et illic luminibus officias, tamen ex ea stipulatione actionem mihi non competere, scilicet quia non debeat videri is damnum facere, qui eo veluti lucro, quo adhuc utebatur, prohibetur, multumque interesse, utrum damnum quis faciat, an lucro, quod adhuc faciebat, uti prohibeatur. mihi videtur vera esse proculi sententia.
Proculus says that when someone, by right, does something on his own property, although he had promised a stipulation for threatened damage (damni infecti) to his neighbor, nevertheless he is not held by that stipulation: for example, if next to my buildings you have buildings and raise them higher by your right, or if in your adjacent field you divert my water by a tunnel (cuniculus) or a ditch: although indeed here you lead off water from me and there you obstruct my lights, nevertheless an action under that stipulation does not lie for me—namely, because he ought not to be regarded as doing damage who is only prevented from that, as it were, lucre (profit) which he had hitherto been enjoying; and it makes much difference whether someone causes damage, or is forbidden to use the profit which he had hitherto been making. It seems to me that Proculus’s opinion is true.
Plures earundem aedium domini singuli stipulari debent sine adiectione partis, quia de suo quisque damno stipulatur: quin immo pars adiecta partis partem faciet. contra si plures domini sint vitiosarum aedium, pro sua quisque parte promittere debet, ne singuli in solidum obligentur.
Several owners of the same building ought each to stipulate individually without the addition of a share, because each stipulates concerning his own damage; nay rather, if a share is added, it will make a share of a share. Conversely, if there are several owners of a defective building, each must promise for his own share, lest individuals be bound in solidum.
In hac stipulatione venit, quanti ea res erit. et ideo cassius scribit eum, qui damni infecti stipulatus est, si propter metum ruinae ea aedificia, quorum nomine sibi cavit, fulsit, impensas eius rei ex stipulatu consequi posse: idemque iuris esse, cum propter vitium communis parietis qui cavit sibi damni infecti, onerum eorum relevandorum gratia, quae in parietem incumbunt, aedificia sua fulsit. in eadem causa est detrimentum quoque propter emigrationem inquilinorum, quod ex iusto metu factum est.
In this stipulation there comes in the question of how much the matter will amount to; and therefore Cassius writes that he who has stipulated under the damnum infectum, if on account of fear of collapse he has shored up those buildings in respect of which he obtained security for himself, can recover the expenses of that matter under the stipulation; and that the same law holds when, because of a defect in a common wall, he who took a cautio for damnum infectum, for the sake of relieving those loads which rest upon the wall, has shored up his own buildings. In the same case is also the loss arising from the emigration of tenants, which occurred from just fear.
Damni infecti stipulatio pertinet etiam, si quid eius operis, quod in fundo meo aquae ducendae causa fit, vitio damnum mihi contigerit: solet enim opus in alieno fieri, cum iure servitutis, quam quis habet alieno agro impositam, opus in alieno faciat.
The stipulation for damnum infectum applies also if, through a defect in those works which are done on my estate for the purpose of conducting water, damage has befallen me; for the work is customarily carried out on another’s property, when, by the right of servitude which someone has as imposed upon another’s field, he performs work on another’s land.
Utrum autem de hoc opere promittere an satisdare debeat, videamus. movet, quod in alieno facit: qui autem de alieno cavet, satisdare debet, qui de suo, repromittere. unde labeo putabat eum, qui modulorum aut rivi faciendi causa opus faceret, etiam satisdare debere, quia in alieno solo faceret.
But whether he ought, with respect to this work, to promise or to give surety, let us consider. What moves (the matter) is that he is doing it on another’s property: now he who gives a caution concerning another’s (property) ought to give surety, he who (does so) concerning his own, to repromise. Whence Labeo thought that one who was doing work for the purpose of making moduli (measuring-gauges) or a rivus (channel) ought also to give surety, because he was doing it on another’s soil.
Si aedibus meis proximae sint aedes meae et tuae, quaeritur, an, si hae vitium mihi faciant, cavere mihi debeas pro damno propriarum mearum aedium, scilicet pro qua parte dominus existes. et hoc plerisque placet: sed movet me, quod ipse meas aedes reficere possim et impensas pro socio aut communi dividundo iudicio pro parte consequi. nam et si unas aedes communes tecum habui eaeque vitium faciant et circa refectionem earum cessare videaris, nostri praeceptores negant cavere te debere, quia ipse reficere possim recepturus pro parte, quod impenderim, iudicio societatis aut communi dividundo: ideo et interpositam cautionem minus utilem futuram, quia alia ratione damnum mihi posset sarciri.
If there are houses adjoining my premises, both mine and yours, the question is whether, if they cause a defect/nuisance to me, you ought to give me security for the loss to my own houses, namely for that share of which you are owner. And this pleases most; but I am moved by the fact that I myself can refect/repair my houses and recover the expenses pro parte by the action pro socio or by the action communi dividundo. For even if I had a single building in common with you and it caused a defect, and you seem to be delaying about its refecting/repair, our preceptors say you need not give security, because I myself can refect/repair, to receive back for the share, what I have expended, by the action of partnership or of communi dividundo; therefore a cautio interposed would also be less useful, because the loss could be made good to me by another mode.
Utique si pro praeterita pensione satisfacere paratus fuit: alioquin iusta retentio pignoris domino fieri videretur. sed et si quasi pignora retinuerit et ea interierint ruina vicinarum aedium, potest dici etiam pigneraticia actione locatorem ^ locatorum^ teneri, si poterat eas res in locum tutiorem transferre.
Assuredly, if he was prepared to satisfy for the past rent: otherwise a justified retention of the pledge would seem to accrue to the owner. But also, if he retained them as though pledges and they have perished through the collapse of neighboring buildings, it can be said that even by the pigneratician action the lessor ^ the lessors^ can be held, if he could have transferred those things into a safer place.
Nam si non fuit, utique demolire eum oportuit nec debet, si quid damni ex hac causa attigit, is qui demolitus est teneri, nisi sumptuose aut parum bonus novus paries sit restitutus. quod si fuerit idoneus paries, qui demolitus est, in actionem damni infecti venit id, quanti interfuit actoris eum parietem stare: merito, nam si non debuit demoliri, restituere eum debet proprio sumptu. sed et si qui reditus ob demolitionem amissus est, consequenter restitui eum sabinus voluit.
For if it was not [sound], in any case it ought to have been demolished, and he who demolished it ought not to be held, if any damage has been incurred from this cause, liable, unless a new wall has been restored either sumptuously or not good enough. But if the wall was suitable, the one who demolished it comes under the action for damnum infectum for that amount of how much it was to the plaintiff’s interest that that wall stand; rightly so, for if it ought not to have been demolished, he must restore it at his own expense. And also, if any revenue was lost on account of the demolition, Sabinus wished that to be restored accordingly.
Emptor aedium ante traditam sibi possessionem ideo inutiliter stipulatur, quia venditor omnem diligentiam ei praestare debet. tunc certe utiliter stipulatur, cum omnis culpa a venditore aberit, veluti si precario emptori in his aedibus esse permisit custodiamque ei afuturus tradidit.
The buyer of a house, before possession has been delivered to him, therefore stipulates to no effect, because the seller ought to render to him every diligence. He certainly stipulates to effect when all fault will be absent from the seller, for instance if he has permitted the buyer to be in these premises by sufferance (precario) and, being about to be away, has handed over the custody to him.
Si agri nomine non caveatur, in eam partem agri mittendum est, ex qua periculum timeatur: eiusque rei ratio haec est, quod in aedificiis partes quoque reliquae a vitiosa parte traherentur, at in agris non idem est. sed dicendum est, ut in domibus quoque maioribus interdum causa cognita praetor statuere debeat, in cuius partis possessionem is, cui non caveatur, mitti debeat.
If security be not given with respect to the field, he must be sent into that part of the field from which danger is feared: and the reason of this matter is this, that in buildings even the remaining parts would be drawn along by the vicious part, but in fields it is not the same. But it must be said that in larger houses also, sometimes, the praetor, the case having been examined, ought to determine into the possession of which part the one, to whom security is not given, ought to be sent.
Inter quos paries communis est, aedificiorum nomine, quae quisque propria habet, stipulari damni infecti solent: sed tunc ea cautio necessaria est, cum aut alter solus aedificat et vitium ex opere futurum est, aut alter pretiosiora aedificia habet et plus damni sensurus sit decidente pariete: alioquin si aequale periculum est, quantum quis vicino praestat, tantum ab eo consequitur.
Among those who have a common wall, with respect to the edifices which each holds as his own, they are accustomed to stipulate for damage not yet done; but that security is necessary when either one alone is building and a defect will arise from the work, or the other has more precious edifices and will be likely to feel more loss if the wall should collapse; otherwise, if the peril is equal, as much as one furnishes to his neighbor, so much he recovers from him.
Si domus in controversia sit, dicendum est damni infecti onus possessoris esse, cum id quod praestiterit imputare domino praedii possit: quod si non caveat, possessionem ad petitorem, qui caveri damni infecti sibi velit, transferant: nam iniquum est stipulatorem compelli relicto praedio, ex quo damnum vereatur, dominum quaerere.
If a house is in controversy, it must be said that the burden of damnum infectum (threatened damage) is the possessor’s, since he can impute to the owner of the estate what he has furnished; but if he does not give security, let possession be transferred to the claimant, who wishes security for damnum infectum to be given to himself: for it is inequitable that the stipulator, with the estate left behind, from which he fears damage, be compelled to seek out the owner.
Damni infecti stipulatio latius patet. et ideo et ei, qui superficiariam insulam habet, utilis est ea stipulatio, si quid in superficie damnum datum fuerit, et nihilo minus et soli domino utilis est, si solo damnum datum fuerit, ut tota superficies tolleretur: fraudabitur enim dominus soli in pensione percipienda.
The stipulation for damnum infectum extends more broadly. And therefore that stipulation is also useful to him who has an insula by right of superficies, if any damage has been done in the superficies; and nonetheless it is also useful to the owner of the soil, if damage has been done to the soil, such that the whole superficies would have to be removed: for the owner of the soil will be defrauded in the receiving of the rent.
Alieno nomine stipulari ita licet, ut quod damnum domino datum sit, comprehendatur: cavere autem debebit is qui stipulabitur dominum ratam rem habiturum exceptioque procuratoria stipulationi inserenda erit, sicut in stipulatione legatorum: quod si ei non cavebitur, mittendus est in possessionem procurator omnimodo, ut ei exceptio procuratoria non noceat.
It is permitted to stipulate in another’s name in such a way that whatever damage has been inflicted upon the owner be comprehended: however, he who will stipulate ought to give security that the owner will hold the matter ratified, and the procuratorial exception must be inserted into the stipulation, as in the stipulation concerning legacies: but if security is not given to him, the procurator must in any case be sent into possession, so that the procuratorial exception may not harm him.
Ex damni infecti stipulatione non oportet infinitam vel immoderatam aestimationem fieri, ut puta ob tectoria et ob picturas: licet enim in haec magna erogatio facta est, attamen ex damni infecti stipulatione moderatam aestimationem faciendam, quia honestus modus servandus est, non immoderata cuiusque luxuria subsequenda.
From the stipulation for threatened damage it is not proper that an infinite or immoderate estimation be made, for instance on account of stuccowork and on account of paintings: for although great disbursement has been made upon these, nevertheless from the stipulation for threatened damage a moderate estimation must be made, because an honest measure is to be observed, not the immoderate luxury of each person to be followed.
Quotiens communis parietis vitio quid accidit, socius socio nihil praestare debet, cum communis rei vitio contigerit. quod si, quia alter eum presserat vel oneraverat, idcirco damnum contigit, consequens est dicere detrimentum hoc, quod beneficio eius contingit, ipsum sarcire debere. quod si aequaliter utriusque oneribus pressus decidit, rectissime sabinus scripsit, parem utriusque causam esse.
Whenever, by the defect of a common wall, something happens, a partner owes nothing to his partner, since it befell by the defect of the common thing. But if, because one of them had pressed or loaded it, therefore damage occurred, it follows to say that this detriment, which happens for his benefit, he himself ought to make good. But if, being pressed equally by the loads of both, it collapsed, most rightly Sabinus wrote that the cause of each is equal.
Quotiens ex damni infecti plures agunt, quia in eadem re damnum passi sunt, id est in aedibus, non debet unusquisque eorum in solidum agere, sed in partem experiri: neque enim damnum, quod pluribus datum est, unicuique in solidum datum est, sed in partem datum esse videtur. et ideo unicuique in partem competere actionem iulianus scripsit.
Whenever several bring suit under the action for damnum infectum, because they have suffered damage in the same thing, that is, in a building, each of them ought not to sue for the whole, but to proceed for his share; for the damage which has been given to several has not been given to each for the whole, but seems to have been given in part. And therefore Julian wrote that the action lies for each for his share.
Si plures domini sint aedium, qui damni infecti sibi prospicere volunt, nec quisquam eis damni infecti caveat, mittendi omnes in possessionem erunt et quidem aequalibus partibus, quamvis diversas portiones dominii habuerint: et ita pomponius scribit.
If there are several owners of a building, who wish to provide for themselves concerning damnum infectum, and no one gives them security for damnum infectum, all must be sent into possession, and indeed in equal parts, although they have had different portions of ownership: and thus Pomponius writes.
Damni infecti quidam vicino repromiserat: ex eius aedificio tegulae vento deiectae ceciderant in vicini tegulas easque fregerant: quaesitum est, an aliquid praestari oportet. respondit, si vitio aedificii et infirmitate factum esset, debere praestari: sed si tanta vis venti fuisset, ut quamvis firma aedificia convelleret, non debere. et quod in stipulatione est " sive quid ibi ruet", non videri sibi ruere, quod aut vento aut omnino aliqua vi extrinsecus admota caderet, sed quod ipsum per se concideret.
A certain man had promised security to his neighbor for damnum infectum (threatened damage): from his building roof-tiles, cast down by the wind, had fallen onto the neighbor’s tiles and had broken them; it was asked whether anything ought to be made good. He answered that, if it had happened by defect and weakness of the building, it ought to be made good; but if there had been so great a force of wind as to tear away even firm buildings, it ought not. And as to what is in the stipulation, “or if anything there will collapse,” he did not think it a “collapse” when something fell by the wind or, generally, by some force applied from outside, but when it fell down of itself by itself.
Cum parietem communem aedificare quis cum vicino vellet, priusquam veterem demoliret, damni infecti vicino repromisit adeoque restipulatus est: posteaquam paries sublatus esset et habitatores ex vicinis cenaculis emigrassent, vicinus ab eo mercedem, quam habitatores non redderent, petere vult: quaesitum est, an recte petet. respondit non oportuisse eos, cum communem parietem aedificarent, inter se repromittere neque ullo modo alterum ab altero cogi potuisse: sed si maxime repromitterent, tamen non oportuisse amplius quam partis dimidiae, quo amplius ne extrario quidem quisquam, cum parietem communem aedificaret, repromittere deberet. sed quoniam iam in totum repromisissent, omne, quod detrimenti ex mercede vicinus fecisset, praestaturum.
When someone wished to build a common wall with his neighbor, before he demolished the old one, he promised his neighbor security for damage not yet done, and accordingly he took a counter-stipulation. After the wall had been removed and the inhabitants had moved out from the neighboring upper apartments, the neighbor wishes to claim from him the rent which the inhabitants did not render: the question was asked whether he will rightly claim. He answered that they ought not, when they were building a common wall, to have promised to each other, nor could either in any way have been compelled by the other: but even if they did most decidedly promise, still it ought not to have been for more than a half share, beyond which not even an outsider, when building a common wall, ought to promise. But since now they had promised for the whole, he will have to make good all the loss which the neighbor incurred from the rent.
Idem consulebat, possetne, quod ob eam rem dedisset, rursus repetere, quoniam restipulatus esset a vicino, si quid ob eam rem, quod ibi aedificatum esset, sibi damnum datum esset, id reddi, cum et ipsam hanc pecuniam, quam daret, propter illud opus perderet. respondit non posse propterea quia non operis vitio, sed ex stipulatione id amitteret.
The same man consulted, whether he could again recover what he had given on that account, since he had restipulated from his neighbor that, if on that account, because of what had been built there, any damage had been given to him, it should be returned, since he would also lose this very money which he was giving on account of that work. He responded that he could not, for this reason: because he would lose it not by a defect of the work, but by stipulation.
Cum postulassem, ut mihi damni infecti promitteres, noluisti et priusquam praetor adiretur, aedes tuae corruerunt et damnum mihi dederunt: potius esse ait, ut nihil novi praetor constituere debeat et mea culpa damnum sim passus, qui tardius experiri coeperim. at si cum praetor ut promitteres decrevisset et te non promittente ire me in possessionem iussisset et prius, quam eo venissem, corruerunt, perinde omnia servanda esse existimavit, atque si posteaquam in possessionem venissem damnum datum esset.
When I had demanded that you promise me for damage not yet done (damnum infectum), you were unwilling; and before the praetor was approached, your house collapsed and caused me damage. He says it is preferable that the praetor should establish nothing new, and that I suffered the damage by my own fault, since I began to proceed too late. But if, when the praetor had decreed that you should promise, and, you not promising, had ordered me to go into possession, and before I had come there the buildings collapsed, he judged that everything must be observed just as if, after I had come into possession, the damage had been done.
Damni infecti nomine in possessionem missus possidendo dominium cepit, deinde creditor eas aedes pignori sibi obligatas persequi vult. non sine ratione dicetur, nisi impensas, quas in refectionem fecerim, mihi praestare sit paratus, inhibendam adversus me persecutionem. cur ergo non emptori quoque id tribuendum est, si forte quis insulam pigneratam emerit?
Sent into possession under the head of damnum infectum, by possessing he took ownership; then a creditor wishes to pursue those house-premises as bound to him in pledge. It will not without reason be said that, unless he is prepared to render to me the expenses which I have made for repair, the pursuit against me should be inhibited. Why, then, should this not be granted to a buyer as well, if perchance someone has bought a tenement that was pledged?
these are not rightly compared with one another, since the purchaser conducts the business by his own will and therefore both can and ought to exact more diligent safeguards for himself from the vendor; which cannot equally be said also of him for whom security for threatened damage is not promised.
Aedificatum habes: ago tibi ius non esse habere: non defendis. ad me possessio transferenda est, non quidem ut protinus destruatur opus ( iniquum enim est demolitionem protinus fieri), sed ut id fiat, nisi intra certum tempus egeris ius tibi esse aedificatum habere.
You have something built; I bring suit that you do not have the right to have it; you do not defend. Possession is to be transferred to me, not indeed so that the work be destroyed forthwith (for it is inequitable that demolition be done forthwith), but so that this be done, unless within a fixed time you shall have brought an action that you have the right to have it built.
Quod conclave binarum aedium dominus ex aliis aedibus in aliarum usum convertit, non solum si contignatio, qua id sustinebitur, orietur ex parte earum aedium, in quarum usum conversum erit, earum fiet, sed etiam si transversa contignatio tota in aliarum aedium parietibus sedebit. sed et labeo in libris posteriorum scribit binarum aedium dominum utrisque porticum superposuisse inque eam aditu ex alteris aedibus dato alteras aedes servitute oneris porticus servandae imposita vendidisse: totam porticum earum aedium esse, quas retinuisset, cum per longitudinem utriusque domus extensa esset transversae contignationi, quae ab utraque parte parietibus domus, quae venisset, sustineretur. nec tamen consequens est, ut superior pars aedificii, quae nulli coniuncta sit neque aditum aliunde habeat, alterius sit, quam cuius est id cui superposita est.
A room which the owner of two houses converts from one house to the use of the other will belong to those houses into whose use it has been converted, not only if the joistwork by which it will be supported will arise from the side of those houses into whose use it has been converted, but even if the transverse joist will sit entirely upon the walls of the other house. But Labeo also writes in the Later Books that an owner of two houses superposed a portico upon both, and, an access into it having been given from one house, sold the other house with a servitude imposed for maintaining the burden of the portico: that the whole portico is of the houses which he had retained, since along the length of each house it had been extended to a transverse joistwork which on both sides was supported by the walls of the house that had been sold. Yet it does not follow that an upper part of a building, which is joined to nothing and has no access from elsewhere, is anyone's other than that of the one to whom belongs that upon which it is superposed.
Haec autem actio locum habet in damno nondum facto, opere tamen iam facto, hoc est de eo opere, ex quo damnum timetur: totiensque locum habet, quotiens manu facto opere agro aqua nocitura est, id est cum quis manu fecerit, quo aliter flueret, quam natura soleret, si forte immittendo eam aut maiorem fecerit aut citatiorem aut vehementiorem aut si comprimendo redundare effecit. quod si natura aqua noceret, ea actione non continentur.
Moreover, this action has a place where the damage is not yet done, though the work has already been done, that is, concerning that work from which damage is feared: and it has a place as often as, by a work made by hand, water is about to harm a field—that is, when someone has made by hand something whereby it would flow otherwise than nature was wont, if perchance by letting it in he has made it greater or swifter or more vehement, or if by compressing it he has brought it about that it overflows. But if by its nature the water would be harmful, such cases are not contained by this action.
Neratius scribit: opus, quod quis fecit, ut aquam excluderet, quae exundante palude in agrum eius refluere solet, si ea palus aqua pluvia ampliatur eaque aqua repulsa eo opere agris vicini noceat, aquae pluviae actione cogetur tollere.
Neratius writes: a work which someone has made in order to exclude the water that, when the marsh overflows, is accustomed to flow back into his field—if that marsh is enlarged by rainwater, and if that water, being repulsed by that work, harms the neighbor’s fields—he will be compelled by the action for rainwater to remove it.
Sed et si quis arare et serere possit etiam sine sulcis aquariis, teneri eum, si quid ex his, licet agri colendi causa videatur fecisse: quod si aliter serere non possit, nisi sulcos aquarios fecerit, non teneri. ofilius autem ait sulcos agri colendi causa directos ita, ut in unam pergant partem, ius esse facere.
But also, if someone can plough and sow even without water-furrows, he is held liable if he does any of these things, although he may seem to have done it for the sake of cultivating the field: but if he cannot sow otherwise unless he has made water-furrows, he is not held liable. Ofilius, however, says that furrows laid straight for the sake of cultivating the field, so that they run off in one direction, are lawful to make.
Idem aiunt aquam pluviam in suo retinere vel superficientem ex vicini in suum derivare, dum opus in alieno non fiat, omnibus ius esse ( prodesse enim sibi unusquisque, dum alii non nocet, non prohibetur) nec quemquam hoc nomine teneri.
They likewise say that it is the right of all to retain rainwater on one’s own, or to derive surface water from a neighbor’s into one’s own, provided that no work is done on another’s property (for each person is not prohibited to profit himself, so long as he does not harm another), and that no one is held liable under this title.
Denique Marcellus scribit cum eo, qui in suo fodiens vicini fontem avertit, nihil posse agi, nec de dolo actionem: et sane non debet habere, si non animo vicino nocendi, sed suum agrum meliorem faciendi id fecit.
Finally, Marcellus writes that against one who, digging on his own property, diverted his neighbor’s spring, nothing can be done, nor does an action for dolus (deceit) lie; and indeed he ought not to have one, if he did this not with the intention of harming his neighbor, but of making his own field better.
Item sciendum est hanc actionem vel superiori adversus inferiorem competere, ne aquam, quae natura fluat, opere facto inhibeat per suum agrum decurrere, et inferiori adversus superiorem, ne aliter aquam mittat, quam fluere natura solet.
Likewise it must be known that this action lies both for the higher against the lower, to prevent him, by a work constructed, from inhibiting water which flows by nature from running through his land, and for the lower against the higher, to prevent him from sending the water otherwise than it is accustomed by nature to flow.
Item sciendum est hanc actionem non alias locum habere, quam si aqua pluvia agro noceat: ceterum si aedificio vel oppido noceat, cessat actio ista, agi autem ita poterit ius non esse stillicidia flumina immittere. et ideo labeo et cascellius aiunt aquae quidem pluviae arcendae actionem specialem esse, de fluminibus et stillicidiis generalem et ubique agi ea licere. itaque aqua, quae agro nocet, per aquae pluviae arcendae actionem coercebitur.
Likewise it must be known that this action has place only if rainwater harms a field; but if it harms a building or a town, that action ceases; however, one can proceed thus, that there is no right to discharge drippings or streams. And therefore Labeo and Cascellius say that the action for warding off rainwater is special, but concerning streams and drippings it is general, and that it is permitted for it to be brought everywhere. And so water which harms a field will be restrained by the action for warding off rainwater.
Apud labeonem autem invenio relatum, si ex agro meo aqua fluens noceat loco qui est intra continentia, hoc est aedificio, non posse me aquae pluviae arcendae conveniri: quod si ex continentibus profluens in meum agrum defluat eique noceat, aquae pluviae arcendae esse actionem.
However, I find reported in Labeo that, if water flowing from my field harms a place which is within the contiguous parts, that is, within the building, I cannot be proceeded against by the action for warding off rainwater; but if, flowing from the contiguous structures, it runs down into my field and harms it, there is an action for warding off rainwater.
Sicut autem opus factum, ut aqua pluvia mihi noceat, in hanc actionem venit, ita per contrarium quaeritur, an posset aquae pluviae arcendae agi, si vicinus opus fecerit, ne aqua, quae alioquin decurrens agro meo proderat, huic prosit. ofilius igitur et labeo putant agi non posse, etiamsi intersit mea ad me aquam pervenire: hanc enim actionem locum habere, si aqua pluvia noceat, non si non prosit.
just as a work constructed so that rainwater may harm me falls under this action, so, by the contrary, it is asked whether one could bring the action for warding off rainwater, if a neighbor has made a work lest the water, which otherwise, running down, was of profit to my field, should be of profit to his. therefore Ofilius and Labeo think that one cannot sue, even if it is to my interest that the water reach me: for this action has place if rainwater does harm, not if it does not profit.
Sed et si vicinus opus tollat et sublato eo aqua naturaliter ad inferiorem agrum perveniens noceat, labeo existimat aquae pluviae arcendae agi non posse: semper enim hanc esse servitutem inferiorum praediorum, ut natura profluentem aquam excipiant. plane si propter id opus sublatum vehementior aqua profluat vel corrivetur, aquae pluviae arcendae actione agi posse etiam labeo confitetur.
But also, if a neighbor removes a work, and, it having been removed, water naturally reaching the lower field causes harm, Labeo thinks that an action for warding off rainwater cannot be brought: for this is always the servitude of lower estates, that they receive water flowing by nature. Clearly, if on account of that work being removed a more vehement water should flow forth or be corrivated, Labeo also admits that one can proceed by the action for warding off rainwater.
Denique ait condicionibus agrorum quasdam leges esse dictas, ut, quibus agris magna sint flumina, liceat mihi, scilicet in agro tuo, aggeres vel fossas habere: si tamen lex non sit agro dicta, agri naturam esse servandam et semper inferiorem superiori servire atque hoc incommodum naturaliter pati inferiorem agrum a superiore compensareque debere cum alio commodo: sicut enim omnis pinguitudo terrae ad eum decurrit, ita etiam aquae incommodum ad eum defluere. si tamen lex agri non inveniatur, vetustatem vicem legis tenere. sane enim et in servitutibus hoc idem sequimur, ut, ubi servitus non invenitur imposita, qui diu usus est servitute neque vi neque precario neque clam, habuisse longa consuetudine velut iure impositam servitutem videatur.
Finally he says that under the conditions of fields certain laws are said to have been laid down, such that, for fields where there are great rivers, it is permitted to me, namely in your field, to have embankments or ditches; yet, if a law has not been laid upon the field, the nature of the field is to be observed, and the lower must always serve the higher, and the lower field must naturally suffer this inconvenience from the higher and ought to compensate it with another advantage: for just as all the fatness of the soil runs down to it, so also the inconvenience of waters flows down to it. If, however, a law of the field is not found, long usage holds the place of law. Indeed we follow this same rule also in servitudes, that, where a servitude is not found to have been imposed, he who has long made use of the servitude, neither by force nor by permission nor in secret, is seen by long custom to have had the servitude as though imposed by right.
Apud labeonem proponitur fossa vetus esse agrorum siccandorum causa nec memoriam extare, quando facta est: hanc inferior vicinus non purgabat: sic fiebat, ut ex restagnatione eius aqua fundo nostro noceret. dicit igitur labeo aquae pluviae arcendae cum inferiore agi posse, ut aut ipse purgaret aut te pateretur in pristinum statum eam redigere.
In Labeo it is set forth that there is an old ditch for the purpose of draining fields, and no memory is extant of when it was made: the lower neighbor was not cleaning this: thus it came about that, from its stagnation, the water was harming our estate. Therefore Labeo says that the interdict for warding off rainwater can be brought against the lower neighbor, so that either he himself should clean it out or allow you to restore it to its pristine state.
Item varus ait: aggerem, qui in fundo vicini erat, vis aquae deiecit, per quod effectum est, ut aqua pluvia mihi noceret. varus ait, si naturalis agger fuit, non posse me vicinum cogere aquae pluviae arcendae actione, ut eum reponat vel reponi sinat, idemque putat et si manu factus fuit neque memoria eius exstat: quod si exstet, putat aquae pluviae arcendae actione eum teneri. labeo autem, si manu factus sit agger, etiamsi memoria eius non exstat, agi posse ut reponatur: nam hac actione neminem cogi posse, ut vicino prosit, sed ne noceat aut interpellet facientem, quod iure facere possit.
Likewise varus says: the embankment which was on the neighbor’s estate the force of the water cast down, with the result that rainwater harmed me. varus says that, if it was a natural embankment, I cannot compel my neighbor by the action for warding off rainwater to replace it or to allow it to be replaced; and he thinks the same even if it was man‑made and no memory of it exists: but if there is a record of it, he thinks that he is held by the action for warding off rainwater. labeo, however, says that, if the embankment was man‑made, even if no memory of it exists, suit can be brought that it be restored: for by this action no one can be compelled to benefit a neighbor, but only that he not harm or interfere with one doing what he can do by right.
although nevertheless the action for warding off rainwater is lacking, yet I am of the opinion that a useful action or an interdict lies for me against my neighbor, if I should wish to restore an embankment on his land—one which, once made, can indeed profit me but will cause him no harm: equity suggests this, even if we are deficient in strict law.
Apud namusam relatum est, si aqua fluens iter suum stercore obstruxerit et ex restagnatione superiori agro noceat, posse cum inferiore agi, ut sinat purgari: hanc enim actionem non tantum de operibus esse utilem manu factis, verum etiam in omnibus, quae non secundum voluntatem sint. labeo contra namusam probat: ait enim naturam agri ipsam a se mutari posse et ideo, cum per se natura agri fuerit mutata, aequo animo unumquemque ferre debere, sive melior sive deterior eius condicio facta sit. idcirco et si terrae motu aut tempestatis magnitudine soli causa mutata sit, neminem cogi posse, ut sinat in pristinam locum condicionem redigi.
In Namusa it is recorded that, if flowing water has obstructed its course with dung and, from the backwater, harms the upper field, it is possible to proceed against the lower [landowner], that he allow it to be cleaned: for this action is useful not only concerning hand-made works, but also in all things which are not in accordance with intention. Labeo, against Namusa, approves the contrary: for he says that the nature of the field itself can be changed by itself, and therefore, when the nature of the field has been changed of itself, each ought to bear it with an even mind, whether its condition has been made better or worse. Therefore also, if by an earthquake or by the magnitude of a tempest the condition of the soil has been changed, no one can be compelled to allow it to be brought back to its former place and condition.
Idem labeo ait, si in agro tuo aquarum concursus locum excavavit, aquae pluviae arcendae actione agi non posse tecum a vicinis: plane si fossam iure factam aut cuius memoria non exstat, agi tecum posse aquae pluviae arcendae, ut reficias.
The same Labeo says that, if on your field the confluence of waters has hollowed out a place, an action for warding off rainwater cannot be brought against you by the neighbors; clearly, if there is a ditch made by right or one whose origin is not remembered, an action for warding off rainwater can be brought against you, to have you restore it.
Idem labeo ait, cum quaeritur, an memoria exstet facto opere, non diem et consulem ad liquidum exquirendum, sed sufficere, si quis sciat factum esse, hoc est, si factum esse non ambigatur: nec utique necesse esse superesse qui meminerint, verum etiam si qui audierint eos, qui memoria tenuerint.
The same Labeo says that, when it is asked whether the performed work exists in memory, it is not necessary to ascertain to clear certainty the day and the consul, but it suffices if someone knows that it was done—that is, if its having been done is not in doubt; nor is it at all necessary that there survive those who remember, but even if there are those who have heard from those who kept it in memory.
Idem labeo ait, si vicinus flumen torrentem averterit, ne aqua ad eum perveniat, et hoc modo sit effectum, ut vicino noceatur, agi cum eo aquae pluviae arcendae non posse: aquam enim arcere hoc esse curare, ne influat. quae sententia verior est, si modo non hoc animo fecit, ut tibi noceat, sed ne sibi noceat.
The same Labeo says that, if a neighbor has diverted a torrent so that the water does not reach him, and in this way it has come about that harm is done to his neighbor, an action against him for warding off rainwater cannot be brought: for to ward off water is to take care that it not flow in. This opinion is truer, provided only that he did not do this with the intention of harming you, but to prevent harm to himself.
Illud etiam verum puto, quod ofilius scribit, si fundus tuus vicino serviat et propterea aquam recipiat, cessare aquae pluviae arcendae actionem, sic tamen, si non ultra modum noceat. cui consequens est, quod labeo putat, si quis vicino cesserit ius ei esse aquam immittere, aquae pluviae arcendae eum agere non posse.
I also think that true which ofilius writes, that if your estate is servient to a neighbor and for that reason receives water, the action for warding off rainwater ceases, yet only if it does not harm beyond measure. Consequent to this is what labeo thinks, that if someone has ceded to his neighbor the right that he may let in water, he cannot bring the action for warding off rainwater.
Apud trebatium relatum est eum, in cuius fundo aqua oritur, fullonicas circa fontem instituisse et ex his aquam in fundum vicini immittere coepisse: ait ergo non teneri eum aquae pluviae arcendae actione. si tamen aquam conrivat vel si spurcam quis immittat, posse eum impediri plerisque placuit.
It is reported by Trebatius that a man, on whose estate water springs forth, had established fulleries around the spring and had begun from these to send water into the neighbor’s estate: he says therefore that he is not liable under the action for warding off rain-water. If, however, he channels the water, or if someone lets in foul water, it has pleased most that he can be prevented.
Si vicinus, qui arvum solebat certo tempore anni rigare, pratum illic fecerit coeperitque adsidua irrigatione vicino nocere, ait ofilius neque damni infecti neque aquae pluviae arcendae actione eum teneri, nisi locum complanavit eoque facto citatior aqua ad vicinum pervenire coepit.
If a neighbor, who used to irrigate his arable at a certain time of the year, has made a meadow there and has begun by assiduous irrigation to harm his neighbor, Ofilius says that he is held by neither the action for threatened damage nor the action for warding off rainwater, unless he leveled the place and, that having been done, the water, swifter, began to reach the neighbor.
Aquae pluviae arcendae non nisi eum teneri, qui in suo opus faciat, receptum est eoque iure utimur. quare si quis in publico opus faciat, haec actio cessat, sibique imputare debet is, qui damni infecti cautione sibi non prospexit. si tamen in privato opus factum sit et publicum interveniat, de toto agi posse aquae pluviae arcendae labeo ait.
It has been received that, in the action to ward off rainwater, only he is held who makes a work on his own property, and we use that law. Therefore, if someone makes a work on public property, this action ceases, and he must impute it to himself if he did not provide for himself by a security for undischarged damage (cautio damni infecti). If, however, the work has been made on private property and the public intervenes, Labeo says that one can proceed for the whole by the action to ward off rainwater.
Quamquam autem cum domino operis tantum aquae pluviae arcendae actio sit, tamen labeo scribit, si quis sepulchrum aedificaverit, ex quo aqua noceat, etiamsi operis dominus esse desierit loco facto religioso, attamen magis probandum est, inquit, aquae pluviae arcendae eum teneri: fuit enim dominus, cum opus faceret: et si iussu iudicis compulsus opus restituerit, non esse sepulchri violati actionem.
Although the action for warding off rainwater lies only against the owner of the work, nevertheless Labeo writes that, if someone has built a tomb from which water causes harm, even if he has ceased to be the owner of the work because the place has been made religious, still it is rather to be approved, he says, that he be held by the action for warding off rainwater: for he was the owner when he made the work; and if, compelled by the order of the judge, he restores the work, there is no action for a violated tomb.
Iulianus quoque scribit, si post iudicium aquae pluviae arcendae susceptum fundum alienaverit is cum quo actum esset, de praeterito damno et de opere restituendo id statuere iudicem debere, quod iudicaret, si nulla alienatio facta esset: nam et fundo alienato nihilominus iudicium manere et damni rationem venire etiam eius, quod alienationem contingit.
Julian likewise writes that, if after the iudicium for warding off rainwater has been undertaken the person with whom the action was brought alienates the estate, the judge ought to determine, concerning past damage and concerning restoring the work, what he would judge if no alienation had been made: for even with the estate alienated the iudicium nonetheless remains, and the reckoning of damages extends also to that which the alienation occasions.
Idem iulianus scribit aquae pluviae arcendae actionem non nisi cum domino esse idcircoque, si colonus ignorante domino opus fecerit, dominum fundi nihil amplius quam patientiam praestare debere, colonum autem interdicto quod vi aut clam impensam quoque restituendi operis et damnum, si quod ex eo datum fuerit, praestare cogendum. si tamen dominus desideret caveri sibi damni infecti ab eo, ex cuius praedio nocet, aequissimum erit caveri oportere.
The same Julian writes that the action for warding off rainwater exists only with the owner; and therefore, if a tenant (colonus), the owner being ignorant, has made a work, the owner of the estate ought to furnish nothing more than patience; but the tenant must be compelled by the interdict quod vi aut clam to provide also the expense of restoring the work, and damages, if any have been caused thereby. If, however, the owner desires that security be given to him for unperformed damage (damnum infectum) by the one from whose estate the harm arises, it will be most equitable that security ought to be given.
Item si non ego, sed procurator meus tale opus fecerit, ut aqua pluvia noceat vicino, adversus me hactenus erit actio, quatenus adversus colonum: ipse autem procurator interdicto quod vi aut clam conveniri poterit secundum iuliani sententiam, etiam post opus restitutum.
Likewise, if not I but my procurator has made such a work that rainwater harms the neighbor, there will be an action against me only to this extent, as against a colonus; but the procurator himself can be proceeded against by the interdict “quod vi aut clam,” according to Julian’s opinion, even after the work has been restored.
Si colonus insciente domino opus fecerit, ex quo aqua vicino noceat, labeo respondit colonum interdicto quod vi aut clam teneri, dominum vero fundi aquae pluviae arcendae actione, quia is solus restituere opus potest: sed patientiam dumtaxat eum praestare debere, si ei damni infecti stipulatione caveatur, et, si quam impensam in restitutione operis fecerit, consecuturum a colono locati actione: nisi si quis ideo non putet, quoniam non fuerit necesse ipsum restituere. sed si iussu domini fecisset, etiam interdicto dominum teneri.
If a tenant-farmer, without the owner’s knowledge, has made a work from which water injures a neighbor, Labeo responded that the colonus is liable under the interdict quod vi aut clam, but that the owner of the land is liable by the action aquae pluviae arcendae, because he alone can restore the work: but that he ought to furnish forbearance only, provided he is secured by a stipulation for damnum infectum; and that, if he has incurred any expense in restoring the work, he will recover it from the colonus by the actio locati—unless someone for that reason should think otherwise, on the ground that it was not necessary that he himself restore it. But if he had done it by the order of the owner, the owner also is held under the interdict.
Si ex plurium fundo decurrens aqua noceat vel si plurium fundo noceatur, placuit eoque iure utimur, ut, sive plurium fundus sit, singuli in partem experiantur et condemnatio in partem fiat, sive cum pluribus agatur, singuli in partem conveniantur et in partem fiat condemnatio.
If water running down from the estate of several causes harm, or if harm is done to the estate of several, it has been decided, and by that law we proceed, that whether the estate is of several, individuals bring suit for their share and condemnation be made for a share, or whether action is taken against several, individuals are convened for their share and condemnation is made for a share.
Si quis prius, quam aquae pluviae arcendae agat, dominium ad alium transtulerit fundi, desinit habere aquae pluviae arcendae actionem eaque ad eum transibit, cuius ager esse coepit: cum enim damnum futurum contineat, ad eum qui dominus erit incipiet actio pertinere, quamvis, cum alterius dominium esset, opus a vicino factum sit.
If someone, before he prosecutes the action for warding off rain-water, has transferred the ownership of the estate to another, he ceases to have the action for warding off rain-water, and it will pass to him whose land it has begun to be: for since it encompasses damage to come, the action will begin to pertain to him who will be the owner, although the work was done by the neighbor when the ownership was another’s.
Officium autem iudicis hoc erit, ut, si quidem a vicino opus factum sit, eum iubeat restituere damnumque sarcire, si quid post litem contestatam contigit: quod si ante litem contestatam damnum contigit, tantum opus restituere debebit, damnum non sarciet.
The duty of the judge will be this: that, if indeed a work has been made by a neighbor, he is to order him to restore it and to make good the damage, if anything occurred after issue has been joined; but if the damage occurred before issue was joined, he will be bound only to restore the work, he will not make good the damage.
Celsus scribit, si quid ipse feci, quo tibi aqua pluvia noceat, mea impensa tollere me cogendum, si quid alius qui ad me non pertinet, sufficere, ut patiar te tollere. sed si servus meus fecerit, aut is cui heres sum hoc fecit, servum quidem noxae dedere debeo: quod autem is cui heres sum fecit, perinde est, atque si ipse fecissem.
Celsus writes that, if I myself have done something by which rainwater injures you, I must be compelled to remove it at my expense; if someone else who does not pertain to me has done something, it is sufficient that I allow you to remove it. But if my slave has done it, or the one whose heir I am has done this, I ought indeed to surrender the slave for noxal liability; moreover, what the one whose heir I am has done is just the same as if I myself had done it.
In concedendo iure aquae ducendae non tantum eorum, in quorum loco aqua oritur, verum eorum etiam, ad quos eius aquae usus pertinet, voluntas exquiritur, id est eorum, quibus servitus aquae debebatur, nec immerito: cum enim minuitur ius eorum, consequens fuit exquiri, an consentiant. et generaliter sive in corpore sive in iure loci, ubi aqua oritur, vel in ipsa aqua habeat quis ius, voluntatem eius esse spectandam placet.
In conceding the right of conducting water, not only the will of those in whose place the water arises is inquired, but also of those to whom the use of that water pertains—that is, of those to whom the servitude of water was owed—and not without cause: for since their right is diminished, it was consequent to inquire whether they consent. And generally, whether one has a right in the corporeal thing or in the right of the place where the water arises, or in the water itself, it is held that his will is to be regarded.
Supra iter alienum arcus aquae ducendae causa non iure fiet: nec is, cui iter actus debetur, pontem, qua possit ire agere, iure extruet. at si specus ( non cuniculum) sub rivo aget, aqua corrumpetur, quia suffosso eo aqua manabit et rivus siccatur.
Above another’s right-of-way an arch for the purpose of conducting water will not be made lawfully: nor will he, to whom the rights of way and of driving are owed, lawfully erect a bridge by which he may be able to go or drive. But if he runs a specus (not a cuniculus) under a stream, the water will be corrupted, because, it being undermined, the water will seep out and the stream will be dried up.
Cassius ait, sive ex communi fundo sive communi aqua noceat, vel unum cum uno agere posse vel unum separatim cum singulis vel separatim singulos cum uno vel singulos cum singulis. si unus egerit et restitutio operis litisque aestimatio facta sit, ceterorum actionem evanescere: item si cum uno actum sit et si praestiterit, ceteros liberari idque, quod sociorum nomine datum sit, per arbitrum communi dividundo reciperari posse.
Cassius says that, whether harm is done from a common estate or from common water, either one may proceed with one, or one separately with each, or separately each with one, or each with each. If one has brought the action and restitution of the work and valuation of the suit has been made, the action of the others is extinguished; likewise, if it has been proceeded with against one and he has performed, the others are released; and that what has been paid in the name of the partners can be recovered through the arbiter in the action for dividing common property.
Et ex sociis non utique cum eo agendum qui opus fecerit nec minus eum quoque damnum restituere debere, qui auctor operis fuit, apud ferocem proculus ait: si cum uno dominorum actum sit, qui opus non fecerit, debere eum opus restituere sua impensa, quia communi dividundo actionem habet. sed sibi magis placere patientiam dumtaxat eum praestare oportere, quia sua culpa actor id patiatur, qui non agit cum eo, a quo opus factum sit, et est iniquum eum, qui non fecit, id restituere oportere, quoniam communi dividundo agere potest: quid enim fiet, si socius eius solvendo non fuerit?
And among partners it is not of course only with him that one must proceed who has done the work, nor any less must he also restore the damage who was the author of the work. In the case Ferox Proculus says: if suit has been brought against one of the owners who did not do the work, he ought to restore the work at his own expense, because he has the action for division of common property. But it pleases him more that he ought to furnish patience only, because by his own fault the plaintiff suffers this, in that he does not proceed against him by whom the work was done; and it is iniquitous that he who did not do it should be required to restore it, since he can sue by the action for division of common property. For what will happen if his partner is not solvent?
Officium autem iudicis inter duos accepti quale futurum sit, dubitare se iulianus ait, si forte unius fundus fuerit cui aqua noceat, si vero in quo opus factum sit, plurium et cum uno eorum agatur: utrum et eius damni nomine, quod post litem contestatam datum sit, et operis non restituti in solidum condemnatio fieri debeat, quemadmodum, cum servi communis nomine noxali iudicio cum uno agitur, condemnatio in solidum fiet, quoniam quod praestiterit, potest a socio recipere? an vero is cum quo agitur pro parte sua et damni dati et operis non restituti nomine damnandus sit, ut in actione damni infecti fiat, cum eius praedii, ex quo damnum metuatur, plures domini sint et cum uno eorum agatur? licet opus, ex quo damnum futurum sit, individuum sit et ipsae aedes solumque earum non potest pro parte dumtaxat damnum dare, nihilo minus eum cum quo agitur pro sua parte condemnari.
However, as to what the duty of a judge accepted between two will be, Julianus says he is in doubt, if perchance the estate is one man’s to whom the water does harm, but the place in which the work has been done belongs to several and suit is brought with one of them: whether condemnation ought to be made in solidum both under the head of the damage which has been caused after the litis contestatio, and for the work not restored, just as, when under the name of a common slave a noxal action is brought against one, condemnation will be in solidum, since what he has paid he can recover from his partner; or rather whether the one with whom suit is brought ought to be condemned for his own share both under the head of damage done and of work not restored, as is done in the actio damni infecti (for threatened damage), when the estate from which the damage is feared has several owners and suit is brought with one of them. Although the work from which the damage will arise is indivisible and the buildings themselves and their soil cannot cause damage merely for a share, nonetheless he with whom suit is brought is to be condemned for his share.
Quod si is fundus, cui aqua pluvia nocet, plurium sit, agere quidem vel singulos posse: sed damni, quod post litem contestatam datum sit, non amplius parte sua consecuturum: item si opus restitutum non fuerit, non amplius, quam quod pro parte eorum interfuerit opus restitui, condemnationem fieri oportere.
But if the estate to which rainwater does harm belongs to several persons, indeed each one can bring the action; but as to the damage that has been done after the litis contestatio, he will recover no more than his own share; likewise, if the work has not been restored, the condemnation ought to be made no further than in the amount that, according to their shares, it has concerned them that the work be restored.
Trebatius existimat, si de eo opere agatur, quod manu factum sit, omnimodo restituendum id esse ab eo, cum quo agitur: si vero vi fluminis agger deletus sit aut glarea iniecta aut fossa limo repleta, tunc patientiam dumtaxat praestandam.
Trebatius considers that, if the action is about that work which has been made by hand, it must in every way be restored by the one against whom suit is brought: but if by the force of the river the embankment has been destroyed or gravel has been thrown in or the ditch has been filled with mud, then only patience is to be furnished.
Emptor ( nisi simulata venditio est) ceterique successores vel restituere, si velint, opus factum vel patientiam praestare debent: nam actori moram suam nocere debere manifestum est. in eadem causa est etiam socius eius qui opus fecit, si ipse auctor non fuit: idemque in donato fundo legatove est.
The purchaser (unless the vendition is simulated) and the other successors ought either to restitute, if they wish, the work that has been done, or to furnish sufferance: for it is manifest that the plaintiff’s own delay ought to harm him. In the same case is also the partner of him who did the work, if he himself was not the author: and the same applies in a donated estate or one left by legacy.
Cum agitur aquae pluviae arcendae, de facto quod nocet quaeritur: ideoque si vitio loci pars aliqua soli subsedit, quamvis per eam causam aqua pluvia inferiori noceat, nulla competit actio. idem fortasse dicitur, si in agro manu factum aliquid subsederit.
When the action for warding off rainwater is in question, the inquiry is about the fact that causes harm; and therefore, if by the defect of the place some part of the soil has subsided, although for that reason rainwater harms the lower holding, no action lies. The same perhaps is said if in a field some man-made thing has subsided.
Post venditionem et traditionem quod nocitum sit ei fundo, de quo ante iudicium acceptum sit aquae pluviae arcendae, nihilo minus eo iudicio venditorem posse consequi, non quia venditori, sed quod rei damnum datum sit, idque eum emptori restituere debere. sed si ante quam noceatur is cum quo actum sit vendat, statim agendum cum emptore, vel intra annum cum eo qui vendiderit, si iudicii evitandi causa id fecerit.
After the vendition and tradition, if harm has been done to that estate, regarding which beforehand a judgment has been obtained under the action for warding off rainwater (aquae pluviae arcendae), nonetheless by that judgment the seller can recover, not because it is owed to the seller, but because damage has been done to the thing; and he ought to restitute that to the buyer. But if, before harm is done, the one against whom action has been brought sells, suit must at once be brought against the buyer, or within a year against the one who sold, if he did this for the sake of avoiding the judgment.
Si prius nocturnae aquae servitus mihi cessa fuerit, deinde postea alia cessione diurnae quoque ductus aquae concessus mihi fuerit et per constitutum tempus nocturna dumtaxat aqua usus fuerim, amitto servitutem aquae diurnae, quia hoc casu plures sunt servitutes diversarum causarum.
If first the servitude of night-time water shall have been granted to me, and then afterwards by another cession the conduit of day-time water also shall have been granted to me, and for the appointed time I shall have used only the night-time water, I lose the servitude of day-time water, because in this case there are several servitudes of diverse causes.
Recto placuit non alias per lapidem aquam duci posse, nisi hoc in servitute constituenda comprehensum sit: non enim consuetudinis est, ut qui aquam habeat per lapidem stratum ducat: illa autem, quae fere in consuetudine esse solent, ut per fistulas aqua ducatur, etiamsi nihil sit comprehensum in servitute constituenda, fieri possunt, ita tamen, ut nullum damnum domino fundi ex his detur.
It has been rightly decided that water cannot be conducted through stone unless this is included when constituting the servitude; for it is not the custom that one who has water should lead it through laid stone: but those things which are generally in use, namely that water be conducted through pipes, can be done even if nothing is included when constituting the servitude, provided, however, that no damage is caused to the owner of the estate from these.
Via publica intercedente haustus servitutem constitui posse placuit et est verum: sed non solum si via publica interveniat, sed et si flumen publicum, eodem casu, quo interveniente flumine publico viae itineris actus servitus imponi potest, id est si non sit impedimento transeunti magnitudo fluminis.
With a public way intervening, it has been decided—and it is true—that a servitude of drawing water (haustus) can be constituted; and not only if a public way intervenes, but also if a public river, in the same case in which, a public river intervening, a servitude of way (viae), of path (itineris), and of drive (actus) can be imposed, that is, if the magnitude of the river is not an impediment to the one crossing.
Sic et si non proximo meo praedio servitutem vicinus debeat, sed ulteriori, agere potero ius esse mihi ire agere ad illum fundum superiorem, quamvis servitutem ipse per fundum meum non habeam, sicut interveniente via publica vel flumine quod vado transiri potest. sed loco sacro vel religioso vel sancto interveniente, quo fas non sit uti, nulla eorum servitus imponi poterit.
Thus also, if the neighbor owes a servitude not to my nearest estate, but to a farther one, I shall be able to bring an action that it is my right to go and to drive to that upper estate, although I myself do not have the servitude across my own land, as where a public road intervenes or a river that can be crossed by a ford. But if a sacred or religious or holy place intervenes, which it is not permissible by divine law to use, none of those servitudes can be imposed.
Sed si fundus medius alterius inter me et te intercedit, haustus servitutem fundo tuo imponere potero, si mihi medius dominus iter ad transeundum cesserit, quemadmodum, si ex flumine publico perenni haustu velim uti, cui flumini ager tuus proximus sit, iter mihi ad flumen cedi potest.
But if another’s middle estate intervenes between me and you, I shall be able to impose on your estate a servitude of drawing water, if the owner of the middle estate cedes to me a right of way for crossing; just as, if I wish to use a perennial drawing from a public river, next to which river your field lies, a right of way to the river can be ceded to me.
Si in meo aqua erumpat, quae ex tuo fundo venas habeat, si eas venas incideris et ob id desierit ad me aqua pervenire, tu non videris vi fecisse, si nulla servitus mihi eo nomine debita fuerit, nec interdicto quod vi aut clam teneris.
If on my property water bursts forth which has veins from your estate, and if you cut those veins and on that account the water ceases to come to me, you do not seem to have acted by force, if no servitude is owed to me under that title; nor are you held under the interdict “by force or secretly” (quod vi aut clam).
Si usus fructus fundi legatus fuerit, aquae pluviae arcendae actio heredi et cum herede est, cuius praedium fuerit. quod si ex opere incommodum aliquod patitur fructuarius, poterit quidem interdum vel interdicto experiri quod vi aut clam. quod si ei non competet, quaerendum est, an utilis ei quasi domino actio aquae pluviae arcendae dari debeat an vero etiam contendat ius sibi esse uti frui: sed magis est utilem aquae pluviae arcendae ei actionem accommodare.
If the usufruct of an estate has been bequeathed, the action for warding off rainwater (actio aquae pluviae arcendae) is for the heir and against the heir, that is, of whoever’s estate (praedium) it was. But if from some work the usufructuary suffers an inconvenience, he can indeed sometimes proceed even by the interdict called quod vi aut clam. If that does not lie for him, the question is whether a useful action should be given to him as if he were the owner—namely the actio aquae pluviae arcendae—or rather that he should even contend that the right is his to use and to enjoy; but it is more advisable to accommodate to him the useful action of aquae pluviae arcendae.
Sed et si fructuarius opus fecerit, per quod aqua pluvia alicui noceat, erit quidem actio legitima cum domino proprietatis: an vero etiam utilis in fructuarium actio aquae pluviae arcendae danda sit, quaesitum est: et magis est ut detur.
But also, if the usufructuary has made a work by which rainwater harms someone, there will indeed be a legitimate action against the owner of the property; but whether a useful action for warding off rainwater should also be granted against the usufructuary has been asked: and the better view is that it should be granted.
Vicinus loci superioris pratum ita arabat, ut per sulcos itemque porcas aqua ad inferiorem veniret: quaesitum est, an per arbitrum aquae pluviae arcendae possit cogi, ut in alteram partem araret, ne sulci in eius agrum spectarent. respondit non posse eum facere, quo minus agrum vicinus quemadmodum vellet araret.
The neighbor of the upper place was plowing his meadow in such a way that through the furrows and likewise the ridges the water would come down to the lower; it was asked whether, by the arbitrium for warding off pluvial water, he could be compelled to plow in the opposite direction, so that the furrows not be oriented toward his field. He replied that he could not bring it about to the effect that the neighbor be hindered from plowing his field as he pleased.
Sed et si fossas fecisset, ex quibus aqua pluvia posset nocere, arbitrum, si appareat futurum, ut aqua pluvia noceret, cogere oportere fossas eum explere et, nisi faceret, condemnare, tametsi antequam adiudicaret, aqua per fossas nunquam fluxisset.
But also, if he had made ditches from which rainwater could cause harm, the arbiter, if it appears that rainwater would be going to cause harm, ought to compel him to fill in the ditches and, unless he did so, to condemn him, even though before he adjudged, water had never flowed through the ditches.
Praetor ait: " quod publicanus eius publici nomine vi ademerit quodve familia publicanorum, si id restitutum non erit, in duplum aut, si post annum agetur, in simplum iudicium dabo. item si damnum iniuria furtumve factum esse dicetur, iudicium dabo. si id ad quos ea res pertinebit non exhibebitur, in dominos sine noxae deditione iudicium dabo".
The praetor says: "what a publican, in the name of the public, shall have taken away by force, or what the familia of the publicans shall have taken away—if that is not restored—I will grant an action for double damages, or, if suit is brought after one year, for single. Likewise, if it is said that wrongful damage or theft has been committed, I will grant an action. If the offender is not produced before those to whom the matter will pertain, I will grant an action against the owners without noxal surrender."
Et restituendi facultas publicano vi abreptum datur, quod si fecerit, omni onere exuitur et poenali actione ex hac parte edicti liberatur. unde quaeritur, si quis velit cum publicano non ex hoc edicto, sed ex generali vi bonorum raptorum, damni iniuriae vel furti agere, an possit? et placet posse, idque pomponius quoque scribit: est enim absurdum meliorem esse publicanorum causam quam ceterorum effectam opinari.
And the faculty of restoring what was carried off by force is given to the tax‑farmer; and if he shall do this, he is relieved of every burden and is freed from the penal action under this part of the edict. Whence the question is raised, if someone wishes to sue the tax‑farmer not under this edict, but by the general action for goods taken by force (vi bonorum raptorum), or for wrongful damage (damni iniuriae), or for theft (furti), whether he can? And it is held that he can, and Pomponius also writes this: for it is absurd to suppose that the cause of the tax‑farmers has been made better than that of others.
Familiae nomen hic non tantum ad servos publicanorum referemus, verum et qui in numero familiarum sunt publicani, sive igitur liberi sint sive servi alieni, qui publicanis in eo vectigali ministrant, hoc edicto continebuntur. proinde et si servus publicani rapuit, non tamen in ea familia constitutus, quae publico vectigali ministrat, hoc edictum cessabit.
The name “familia” here we will refer not only to the slaves of the publicani, but indeed also to those who are counted in the number of the familiae of the publicani; accordingly, whether they be free or another’s slaves, who minister to the publicani in that tax, they will be encompassed by this edict. Accordingly, even if a slave of a publicanus has committed rapine, yet not being established in that familia which ministers to the public revenue, this edict will be inapplicable.
Quod novissime praetor ait " si hi non exhibebuntur, in dominos sine noxae deditione iudicium dabo", hoc proprium est huius edicti, quod, si non exhibeantur servi, competit iudicium sine noxae deditione, sive habeant eos in potestate sive non, sive possint exhibere sive non possint,
As to what the praetor most recently says, "if these are not produced, I will give an action against the masters without noxal surrender," this is peculiar to this edict: that, if the slaves are not produced, an action lies without noxal surrender, whether they have them in their power or not, whether they can produce them or cannot,
De rebus, quas in usus advehendas sibi mandant praesides, divus hadrianus praesidibus scripsit, ut, quotiens quis in usus aut eorum, qui provinciis exercitibusve praesunt, aut procuratorum suorum usus sui causa mittet quendam empturum, significet libello manu sua subscripto eumque ad publicanum mittat, ut, si quid amplius quam mandatum est transferet, id munificum sit.
Concerning the things which the governors order to be brought in for use to themselves, the deified Hadrian wrote to the governors that, whenever anyone, for the uses either of those who preside over the provinces or the armies, or of their procurators, for their personal use, shall send someone to buy, he should signify it by a petition subscribed with his own hand and send him to the publican, so that, if he carries anything more than has been mandated, that may be chargeable as a public burden.
Si multi publicani sint, qui illicite quid exegerunt, non multiplicatur dupli actio, sed omnes partes praestabunt et quod ab alio praestari non potest, ab altero exigetur, sicut divus severus et antoninus rescripserunt: nam inter criminis reos et fraudis participes multum esse constituerunt.
If there are many tax-farmers who have unlawfully exacted something, the action for the double is not multiplied, but all will render their shares; and what cannot be rendered by one will be demanded from another, as the deified Severus and Antoninus wrote in a rescript: for they established that there is much difference between defendants in a crime and participants in the fraud.
Quod illicite publice privatimque exactum est, cum altero tanto passis iniuriam exsolvitur. per vim vero extortum cum poena tripli restituitur: amplius extra ordinem plectuntur: alterum enim utilitas privatorum, alterum vigor publicae disciplinae postulat.
What has been illicitly exacted, publicly or privately, is discharged by paying, to those who have suffered the injury, another amount as much again. But what has been extorted by force is restituted with the penalty of the triple; furthermore, they are punished beyond this by extraordinary measures: for the one is demanded by the utility of private persons, the other by the vigor of public discipline.
Dominus navis si illicite aliquid in nave vel ipse vel vectores imposuerint, navis quoque fisco vindicatur: quod si absente domino id a magistro vel gubernatore aut proreta nautave aliquo id factum sit, ipsi quidem capite puniuntur commissis mercibus, navis autem domino restituitur.
If the owner of the ship, whether he himself or the passengers, have illicitly loaded anything onto the ship, the ship too is adjudged to the fisc: but if, the owner being absent, this has been done by the master or the helmsman or the prow-man or by some sailor, they themselves are punished with capital punishment, the merchandise being forfeited, but the ship is restored to the owner.
Familiae autem appellatione hic servilem familiam contineri sciendum est. sed et si bona fide publicano alienus servus servit, aeque continebitur: fortassis et mala fide, plerumque enim vagi servi et fugitivi in huiusmodi operis etiam a scientibus habentur. ergo et si homo liber serviat, hoc edictum locum habet.
But it must be understood that under the appellation “familia” here the servile familia is contained. But also, if in bona fide a slave belonging to another serves a publican (tax‑farmer), he will likewise be included; perhaps even in mala fide, for very often wandering slaves and fugitives are employed in works of this kind even by those knowing it. Therefore, even if a free man serves, this edict has place.
Commissa vectigalium nomine etiam ad heredem transmittuntur. nam quod commissum est, statim desinit eius esse qui crimen contraxit dominiumque rei vectigali adquiritur: eapropter commissi persecutio sicut adversus quemlibet possessorem, sic et adversus heredem competit.
Forfeitures under the head of vectigalia are transmitted even to the heir. For what has been forfeited at once ceases to be his who incurred the offense, and title to the vectigalian property is acquired; therefore the prosecution of the forfeiture lies, just as against any possessor, so also against the heir.
Caesar cum insulae cretae cotorias locaret, legem ita dixerat: " ne quis praeter redemptorem post idus martias cotem ex insula creta fodito neve eximito neve avellito". cuiusdam navis onusta cotibus ante idus martias ex portu cretae profecta vento relata in portum erat, deinde iterum post idus martias profecta erat. consulebatur, num contra legem post idus martias ex insula creta cotes exisse viderentur. respondit, tametsi portus quoque, qui insulae essent, omnes eius insulae esse viderentur, tamen eum, qui ante idus martias profectus ex portu esset et relatus tempestate in insulam deductus esset, si inde exisset non videri contra legem fecisse, praeterea quod iam initio evectae cotes viderentur, cum et ex portu navis profecta esset.
When Caesar let out the whetstone-quarries of the island of Crete, he stated the law thus: “Let no one, except the contractor, after the Ides of March dig a whetstone from the island of Crete, nor remove it, nor tear it away.” A certain ship, laden with whetstones, before the Ides of March had set out from the port of Crete, had been driven back by the wind into the port, and then again after the Ides of March had set out. It was consulted whether, contrary to the law, after the Ides of March the whetstones seemed to have gone out from the island of Crete. He replied that, although the ports also which belonged to the island would all seem to be of that island, nevertheless he who before the Ides of March had set out from the port and, being driven back by a tempest, had been brought down into the island, if he went out from there, would not seem to have acted against the law; furthermore, that the whetstones would seem to have been carried out already at the beginning, since the ship too had set out from the port.
Interdum nec vendendus est is servus qui in commissum cecidit, sed pro eo aestimatio a domino danda est. divi enim severus et antoninus rescripserunt, cum is servus, qui actum domini gessisse diceretur, in commissum cecidisset, venire non debuisse, sed pro eo viri boni arbitratu aestimationem oportuisse dari.
Sometimes even the slave who has fallen into forfeiture is not to be sold, but an estimation for him is to be given by the master. For the deified Severus and Antoninus issued a rescript that, when the slave who was said to have conducted the master’s business had fallen into forfeiture, he ought not to have come to sale, but instead an estimation ought to be given for him, by the arbitrament of a good man.
Idem autem eadem epistula rescripserunt, si quis inprofessus servus fuerit et probabitur in commissum cecidisse, et aut uxorem corrupisse domini dicatur aut aliud quid gravius admisisse, ut cognoscat procurator et, si in his causis esse compertus sit, aestimetur et ad poenam domino tradatur.
Moreover, in the same epistle they wrote back thus: if any unprofessed slave shall exist and it shall be proved that he has fallen into a forfeiture, and either is said to have corrupted his master’s wife or to have admitted some other graver thing, the procurator is to take cognizance; and, if he be found to be implicated in these cases, let him be appraised and handed over to the master for punishment.
Quotiens quis mancipia invecta professus non fuerit sive venalia sive usualia, poena commissi est, si tamen novicia mancipia fuerint, non etiam veterana. sunt autem veterana, quae anno continuo in urbe servierint: novicia autem mancipia intelleguntur, quae annum nondum servierint.
As often as anyone has not declared slaves brought in, whether for sale or for ordinary use, he is liable to the penalty for the offense, provided they are new slaves, not also veteran ones. Veteran are those who have served in the city for a continuous year; new slaves are understood to be those who have not yet served a year.
Servi, qui in fuga sunt, in commissum non cadunt, cum sine voluntate domini fines egressi sunt: et ita principalibus constitutionibus cavetur, sicut divus quoque pius saepissime rescripsit, ne, inquit, in potestate servorum sit invitis vel ignorantibus dominis fugae se tradendo potestati dominorum se subtrahere.
Slaves who are in flight do not fall into forfeiture, since they have crossed the boundaries without the will of the master: and thus it is provided by imperial constitutions, just as the deified Pius also has very often written in rescripts, “lest,” he says, “it be in the power of slaves, their masters unwilling or unaware, by committing themselves to flight to withdraw themselves from the power of their masters.”
Species pertinentes ad vectigal: cinnamomum: piper longum: piper album: folium pentasphaerum: folium barbaricum: costum: costamomum: nardi stachys: cassia turiana: xylocassia: smurna: amomum: zingiberi: malabathrum: aroma indicum: chalbane: laser: alche: lucia: sargogalla: onyx arabicus: cardamomum: xylocinnamomum: opus byssicum: pelles babylonicae: pelles parthicae: ebur: ferrum indicum: carpasum: lapis universus: margarita: sardonyx: ceraunium: hyacinthus: smaragdus: adamas: saffirinus: callainus: beryllus: chelyniae: opia indica vel adserta: metaxa: vestis serica vel subserica: vela tincta carbasea: nema sericum: spadones indici: leones, leaenae: pardi: leopardi: pantherae: purpura: item marocorum lana: fucus: capilli indici.
Commodities pertaining to the tax: cinnamon: long pepper: white pepper: pentasphaerum leaf: barbaricum leaf: costus: costamomum: spikenard: Tyrian cassia: wood-cassia: myrrh: amomum: ginger: malabathrum: Indian aromatics: galbanum: laser: alche: lucia: sargocolla: Arabian onyx: cardamom: wood-cinnamon: byssine work: Babylonian hides: Parthian hides: ivory: Indian iron: carpasum: all kinds of stone: pearl: sardonyx: ceraunium: hyacinth: emerald: diamond: sapphire: callainus: beryl: chelyniae: Indian opia or adserta: metaxa: silk garment or half-silk: dyed carbasus sails: silk thread: Indian eunuchs: lions, lionesses: pards: leopards: panthers: purple: likewise wool of the Marocci: fucus: Indian hair.
Si quis professus apud publicanum fuerit, non tamen vectigal solverit, hoc concedente publicano, ut solent facere, divi seversus et antoninus rescripserunt res in commissum non cadere: cum enim, inquiunt, professiones recitantur, commissum cessat, cum poterit satisfieri fisco ex bonis publicanorum vel fideiussorum.
If anyone shall have made a declaration before a publican, yet has not paid the vectigal, the publican permitting this, as they are wont to do, the deified Severus and Antoninus rescripted that the things do not fall into forfeiture: for when, they say, the professions are recited, the forfeiture ceases, since it will be possible to satisfy the fisc from the goods of the publicans or of the sureties.
Donationes complures sunt. dat aliquis ea mente, ut statim velit accipientis fieri nec ullo casu ad se reverti, et propter nullam aliam causam facit, quam ut liberalitatem et munificentiam exerceat: haec proprie donatio appellatur. dat aliquis, ut tunc demum accipientis fiat, cum aliquid secutum fuerit: non proprie donatio appellabitur, sed totum hoc donatio sub condicione est.
Donations are of several kinds. Someone gives with this intention, that he wants it at once to become the recipient’s and not in any case to revert to himself, and he does it for no other cause than to exercise liberality and munificence: this is properly called a donation. Someone gives so that it becomes the recipient’s only when something has ensued: it will not be properly called a donation, but the whole is a donation under a condition.
Likewise, when someone gives with this intention, that it indeed immediately becomes the recipient’s, yet, if something shall have been done or not done, he wishes it to revert to himself, it is not properly called a donation, but the whole of this is a donation which is dissolved under a condition. Such is a donation in contemplation of death.
Igitur cum dicimus inter sponsum et sponsam donationem valere, propria appellatione utimur et factum demonstramus, quod ab eo proficiscitur, qui liberalitatis gratia aliquid dat, ut confestim faciat accipientis nec umquam ullo facto ad se reverti velit. cum vero dicimus, si hac mente donat sponsus sponsae, ut nuptiis non secutis res auferatur, posse repeti, non contrarium priori dicimus, sed concedimus inter eas personas fieri donationem eam, quae sub condicione solvatur.
Therefore, when we say that a donation is valid between fiancé and fiancée, we use the proper appellation and we demonstrate the fact, which proceeds from him who, for the sake of liberality, gives something, so that it immediately becomes the recipient’s and he should never by any act wish it to revert to himself. But when we say that, if the fiancé gives to the fiancée with this intention—that, if the nuptials do not follow, the thing be taken away—it can be reclaimed, we are not saying the contrary of the former, but we concede that between those persons a donation can be made which is resoluble under a condition.
Si vero pater donaturus titio pecuniam iusserit filium suum eam promittere, poterit dici interesse, debitor filius patri suo fuerit nec ne: nam si tantumdem filius patri debuit, quantum promisit, valere donatio intellegitur, perinde ac si quemlibet alium debitorem pater iussisset pecuniam promittere.
But if indeed the father, intending to donate money to Titius, has ordered his son to promise it, it may be said to make a difference whether the son was a debtor to his father or not: for if the son owed his father as much as he promised, the donation is understood to be valid, just as if the father had ordered any other debtor to promise the money.
Aliud iuris erit, si pecuniam, quam me tibi debere existimabam, iussu tuo spoponderim ei cui donare volebas: exceptione enim doli mali tueri me potero et praeterea incerti condictione stipulatorem compellam, ut mihi acceptum faciat stipulationem.
There will be a different rule of law, if the money which I thought I owed you I, at your order, promised to the one to whom you wished to donate: for by the exceptio doli mali I shall be able to protect myself, and moreover by the condictio incerti I shall compel the stipulator to enter the stipulation as received on my account.
Item si ei, quem creditorem tuum putabas, iussu tuo pecuniam, quam me tibi debere existimabam, promisero, petentem doli mali exceptione summovebo et amplius incerti agendo cum stipulatore consequar, ut mihi acceptum faciat stipulationem.
Likewise, if, at your order, I have promised to him whom you supposed to be your creditor the money which I thought that I owed to you, I will ward off the claimant by the exception of fraud (exceptio doli mali), and further, by bringing an action for an indeterminate sum (actio incerti) against the stipulator I shall obtain that he enter the stipulation as received in my favor (acceptilation).
Titio ^ tertio^ decem donavi ea condicione, ut inde stichum sibi emeret: quaero, cum homo antequam emeretur mortuus sit, an aliqua actione decem recipiam. respondit ^ respondi^: facti magis quam iuris quaestio est: nam si decem titio in hoc dedi, ut stichum emeret, aliter non daturus, mortuo sticho condictione repetam: si vero alias quoque donaturus titio decem, quia interim stichum emere proposuerat, dixerim in hoc me dare, ut stichum emeret, causa magis donationis quam condicio dandae pecuniae existimari debebit et mortuo sticho pecunia apud titium remanebit.
To Titius ^ to Tertius^ I donated ten on this condition, that from it he buy Stichus for himself: I ask, since the man died before he was purchased, whether by any action I may recover the ten. he responded ^ I responded^: it is a question more of fact than of law. For if I gave the ten to Titius for this purpose, that he buy Stichus—otherwise not being about to give it—then, Stichus having died, I shall recover by a condiction. But if indeed I was going to donate the ten to Titius also for other reasons, because in the meantime he had proposed to buy Stichus, I would say that in this I am giving, that he buy Stichus; it ought to be judged the motive (causa) of the donation rather than a condition of giving the money, and with Stichus dead the money will remain with Titius.
Qui saxum mihi eximere de suo permisit donationis causa, statim cum lapis exemptus est meus fit, neque prohibendo me evehere efficit, ut meus esse desinat, quia quodammodo traditione meus factus est: plane si mercennarius meus exemit, mihi exemit. sed si is qui a me emerat sive mercede conduxerat, ut paterer eum sibi iure eximere, si antequam eximat, me paenituerit, meus lapis durat, si postea, ipsius factum avocare non possum: quasi traditio enim facta videtur, cum eximitur domini voluntate. quod in saxo est, idem erit etiam, si in arbore caesa vel dempta acciderit.
He who has permitted me to remove a rock from his own for the cause of a donation, immediately when the stone is removed it becomes mine, nor does his forbidding me to carry it away bring it about that it ceases to be mine, because in a certain manner by traditio (delivery) it has become mine: plainly, if my hireling (mercenary) removed it, he removed it for me. But if the one who had bought from me or had hired for a wage, so that I should allow him to remove it to himself by right—if before he removes it I have repented, my stone endures; if afterwards, I cannot revoke what he has done: for a kind of traditio seems to have been made, when it is removed with the will of the owner. What holds in the case of a stone will be the same also, if it happens in a tree that is cut or taken off.
Nonnumquam etiam ex persona poterit hoc colligi: pone enim filium esse senatoriae vel cuius alterius dignitatis: quare non dicas videri patrem, nisi ei specialiter donandi facultatem ademit, hoc quoque concessisse, dum liberam dat peculii administrationem?
Sometimes too this can be gathered from the persona: for suppose the son to be of senatorial or of some other dignity: why would you not say that the father, unless he has specifically taken from him the faculty of donating, is to be regarded as having granted this also, when he gives free administration of the peculium?
Pari autem ratione, qua donare filius familias prohibetur, etiam mortis causa donare prohibebitur: quamvis enim ex patris voluntate mortis quoque causa donare possit, attamen ubi cessat voluntas, inhibebitur haec quoque donatio.
By the same reasoning by which a son under paternal power is prohibited from making a gift, he will also be prohibited from making a donatio mortis causa: for although by the father’s will he can also make a donatio mortis causa, nevertheless, when that will ceases, this donation too will be restrained.
In aedibus alienis habitare gratis donatio videtur: id enim ipsum capere videtur qui habitat, quod mercedem pro habitatione non solvit. potest enim et citra corporis donationem valere donatio, veluti ^ velut^ si donationis causa cum debitore meo paciscar, ne ante certum tempus ab eo petam.
To dwell gratis in another’s house is seen as a donation: for he who dwells seems to take that very thing, in that he does not pay rent for the dwelling. For a donation can be valid even without a donation of a corporeal thing, for example ^ for example^ if for the sake of a donation I make a pact with my debtor that I will not demand from him before a fixed time.
Absenti, sive mittas qui ferat, sive quod ipse habeat sibi habere eum iubeas, donari recte potest. sed si nescit rem quae apud se est sibi esse donatam, vel missam sibi non acceperit, donatae rei dominus non fit, etiamsi per servum eius cui donabatur missa fuerit, nisi ea mente servo eius data fuerit, ut statim eius fiat.
To an absent person, it can rightly be gifted, whether you send someone to carry it, or you order that he hold for himself what he himself is holding. But if he does not know that the thing which is with him has been given to him, or has not accepted as his what has been sent to him, he does not become owner of the donated thing, even if it has been sent through the slave of the person to whom it was being donated, unless it was given to his slave with the intention that it should at once become his.
Qui mihi donatum volebat, servo communi meo et titii rem tradidit: servus vel sic accepit quasi socio adquisiturus vel sic quasi mihi et socio: quaerebatur quid ageret. et placet, quamvis servus hac mente acceperit, ut socio meo vel mihi et socio adquirat, mihi tamen adquiri: nam et si procuratori meo hoc animo rem tradiderit, ut mihi adquirat, ille quasi sibi adquisiturus acceperit, nihil agit in sua persona, sed mihi adquirit.
He who wished a thing to be donated to me delivered the thing to our common slave, mine and Titius’s: the slave either received it thus as if about to acquire for my partner, or thus as if for me and my partner: the question arose what it would effect. And it is the accepted view that, although the slave received with this intention, that he acquire for my partner or for me and my partner, nevertheless it is acquired for me: for even if he has delivered the thing to my procurator with this intention, that he acquire for me, if the latter has received it as if about to acquire for himself, he does nothing in his own persona, but acquires for me.
Denique refert aristonem putare, si servum tibi tradidero ad hoc, ut eum post quinquennium manumittas, non posse ante quinquennium agi, quia donatio aliqua inesse videtur: aliter atque, inquit, si ob hoc tibi tradidissem, ut continuo manumittas: hic enim nec donationi locum esse et ideo esse obligationem. sed et superiore casu quid acti sit, inspiciendum pomponius ait: potest enim quinquennium non ad hoc esse positum, ut aliquid donetur.
Finally he reports that Aristo thinks that, if I have delivered a slave to you for this purpose, that you manumit him after five years, no action can be brought before the five-year term, because some donation seems to be present; otherwise than, he says, if I had delivered him to you for this, that you manumit him immediately: for here there is no place for a donation and therefore there is an obligation. But Pomponius says that even in the former case what has been transacted must be inspected: for the five-year period may have been set not for this purpose, that something be donated.
Idem aristo ait, si donationis causa in hoc tradatur servus, ut post quinquennium manumittatur, sit autem alienus, posse dubitari an usucapiatur, quia aliquid donationis interveniret. et hoc genus quaestionis in mortis causa donationibus versari pomponius ait et magis putat ut, si ita donetur, ut post quinquennium manumittatur, posse dici usucapionem sequi.
The same Aristo says that, if a slave is delivered for the sake of a donation for this purpose, that he be manumitted after five years, but he belongs to another, it can be doubted whether he is acquired by usucapion, because some element of donation would intervene. And Pomponius says that this kind of question is engaged with donations mortis causa, and he rather thinks that, if he is donated on such terms—that he be manumitted after five years—it can be said that usucapion follows.
Si quis dederit pecuniam mutuam titio reddendam seio, cui donatum volebat, deinde titius mortuo donatore seio dedisse proponatur, erit consequens dicere pecuniam seii fieri, sive mortuum scivit sive ignoravit is qui dabat, quia pecunia fuit dantis: sed si quidem ignoravit mortuum, erit liberatus, si sic mutuam pecuniam accepit solvendam seio. si autem mandavero tibi, ut pecuniam titio des, cui donare volebam, et tu ignorans me mortuum hoc feceris, habebis adversus heredes meos mandati actionem: si sciens, non habebis.
If someone has given money as a loan to Titius, to be returned to Seius, whom he wished to receive it as a gift, and then it is alleged that, after the donor has died, Titius paid Seius, it will follow to say that the money becomes Seius’s, whether the one paying knew or did not know of the death, because the money belonged to the donor. But if he was indeed ignorant of the death, he will be released, if he accepted the loan on these terms, to be paid to Seius. If, however, I have mandated you to give the money to Titius, to whom I wished to donate, and you, not knowing that I am dead, have done this, you will have against my heirs an action on mandate; if knowing, you will not have it.
De illo dubitari potest, qui, quod per falcidiam retinere poterat, voluntatem testatoris secutus spopondit se daturum: sed magis est, ut non possit suae confessioni obviare. quemadmodum enim, si solvisset, fidem testatori suo adimplesse videbatur et nulla ei repetitio concessa fuerat, ita et stipulatione procedente contra fidem testatoris, quam adgnovit, venienti ei merito occurretur.
About that person doubt can be entertained who, as to what he could have retained by the Falcidian law, following the testator’s will, stipulated that he would give it; but the sounder view is that he cannot oppose his own confession. For just as, if he had paid, he would seem to have fulfilled the faith owed to his testator and no recovery would have been granted to him, so also, with the stipulation proceeding, against the testator’s faith which he acknowledged, he will deservedly be met with opposition when he comes.
Sed si debitorem meum tibi donationis immodicae causa promittere iussi, an summoveris donationis exceptione necne, tractabitur. et meus quidem debitor exceptione te agentem repellere non potest, quia perinde sum, quasi exactam a debitore meo summam tibi donaverim et tu illam ei credideris. sed ego, si quidem pecuniae a debitore meo nondum solutae sint, habeo adversus debitorem meum rescissoriam in id, quod supra legis modum tibi promisit ita, ut in reliquum tantummodo tibi maneat obligatus: sin autem pecunias a debitore meo exegisti, in hoc, quod modum legis excedit, habeo contra te condictionem.
But if I have ordered my debtor, for the sake of an immoderate donation, to promise to you, it will be discussed whether you are removed by the donation defense or not. And indeed my debtor cannot repel you as plaintiff by the defense, because I am in the same position as if I had donated to you the sum exacted from my debtor and you had credited it to him. But I, if indeed the monies have not yet been paid by my debtor, have against my debtor a rescissory action for that portion which he promised to you beyond the measure of the law, in such a way that only for the remainder does he continue bound to you: but if you have exacted the monies from my debtor, for that which exceeds the measure of the law I have a condictio against you.
Si tibi dederim rem, ut titio meo nomine donares, et tu tuo nomine eam ei dederis, an factam eius putes? respondit, si rem tibi dederim, ut titio meo nomine donares eamque tu tuo nomine ei dederis, quantum ad iuris suptilitatem accipientis facta non est et tu furti obligares: sed benignius est, si agam contra eum qui rem accepit, exceptione doli mali me summoveri.
If I should give a thing to you, so that you might make a gift to Titius in my name, and you have given it to him in your own name, do you think it has become his? He replied: if I should give the thing to you so that you might donate it to Titius in my name, and you have given it to him in your own name, so far as the subtlety of the law is concerned, it has not become the recipient’s (property), and you would be liable for theft; but it is more benign that, if I bring an action against the one who received the thing, I be repelled by the exception of fraud (dolus malus).
Aquilius regulus iuvenis ad nicostratum rhetorem ita scripsit: " quoniam et cum patre meo semper fuisti et me eloquentia et diligentia tua meliorem reddidisti, dono et permitto tibi habitare in illo cenaculo eoque uti". defuncto regulo controversiam habitationis patiebatur nicostratus et cum de ea re mecum contulisset, dixi posse defendi non meram donationem esse, verum officium magistri quadam mercede remuneratum regulum ideoque non videri donationem sequentis temporis irritam esse. quod si expulsus nicostratus veniat ad iudicem, ad exemplum interdicti, quod fructuario proponitur, defendendus erit quasi loco possessoris constitutus, qui usum cenaculi accepit.
Aquilius Regulus, a young man, wrote thus to Nicostratus the rhetorician: " since you have always been with my father, and you have made me better by your eloquence and diligence, I give and permit you to dwell in that upper room and to use it." When Regulus had died, Nicostratus was undergoing a controversy about habitation; and when he had conferred with me about that matter, I said it could be defended that this was not a mere donation, but rather the office of a teacher remunerated by a certain merces (fee), and for that reason it does not seem that a donation for a subsequent time is void. But if, after being expelled, Nicostratus should come before the judge, then, on the model of the interdict which is proposed for the usufructuary, he must be defended as if established in the place of a possessor, he who has received the use of the upper room.
Hereditatem pater sibi relictam filiae sui iuris effectae donavit: creditoribus hereditariis filia satisfacere debet, vel, si hoc minime faciat et creditores contra patrem veniant, cogendam eam per actionem praescriptis verbis patrem adversus eos defendere.
The father donated to his daughter, who had become of her own right (sui iuris), an inheritance that had been left to himself: the daughter must satisfy the hereditary creditors; or, if she does not do this and the creditors proceed against the father, she is to be compelled, by an action with prescribed words, to defend her father against them.
Quidam in iure interrogatus nihil sibi debere tutoris heredes respondit. eum actionem iure amisisse respondi: licet enim non transactionem, sed donationis haec verba esse quis accipiat, attamen eum, qui in iure confessus est, suam confessionem infirmare non posse.
A certain man, when questioned in court, replied that the heirs of his guardian owed him nothing. I replied that he had lost the action by law: for although someone may take these words to be not of a transaction but of a donation, nevertheless he who has confessed in court cannot invalidate his own confession.
Donationem quidem partis bonorum proximae cognatae viventis nullam fuisse constabat: verum ei, qui donavit ac postea iure praetorio successit, quoniam adversus bonos mores et ius gentium festinasset, actiones hereditarias in totum denegandas respondit:
It stood established that a donation of a part of the goods of a nearest kinswoman who was living was null: but as to him who made the donation and afterwards succeeded by praetorian law, since he had hastened in a manner contrary to good morals and the law of nations, he replied that the hereditary actions should be denied in their entirety:
Donationes in concubinam collatas non posse revocari convenit nec, si matrimonium inter eosdem postea fuerit contractum, ad irritum reccidere quod ante iure valuit. an autem maritalis honor et affectio pridem praecesserit, personis comparatis, vitae coniunctione considerata perpendendum esse respondi: neque enim tabulas facere matrimonium.
It is agreed that donations bestowed upon a concubine cannot be revoked, nor, if a marriage between the same parties has later been contracted, does that which previously had force in law fall back into nullity. But whether the marital honor and affection had earlier been present must be weighed—after comparing the persons and considering the conjunction of life—as I replied; for it is not the tablets that make a marriage.
Species extra dotem a matre filiae nomine viro traditas filiae quae praesens fuit donatas et ab ea viro traditas videri respondi nec matrem offensam repetitionem habere vel eas recte vindicare, quod vir cavisset extra dotem usibus puellae sibi traditas, cum ea significatione non modus donationis declaretur nec ab usu proprietas separetur, sed peculium a dote puellae distingueretur. iudicem tamen aestimaturum, si mater iure contra filiam offensa eas revocare velit, et verecundiae maternae congruam bonique viri arbitrio competentem ferre sententiam.
I answered that items outside the dowry, delivered by the mother to the husband in the daughter’s name, are to be seen as donated to the daughter—who was present—and as delivered by her to the husband; and that the mother, though offended, has no repetition nor can rightly vindicate them, because the husband had covenanted that, apart from the dowry, they were delivered to himself for the uses of the girl, since by that wording neither is the mode of donation declared nor is ownership separated from use, but the peculium is distinguished from the girl’s dowry. Nevertheless, the judge will evaluate, if the mother, with right, being offended against her daughter, wishes to revoke them, and will deliver a sentence congruent with maternal modesty and fitting according to the arbitrium of a good man.
Lucius titius epistulam talem misit: " ille illi salutem. hospitio illo quamdiu volueris utaris superioribus diaetis omnibus gratuito, idque te ex voluntate mea facere hac epistula notum tibi facio": quaero an heredes eius habitatione eum prohibere possunt. respondit secundum ea quae proponerentur, heredes eius posse mutare voluntatem.
Lucius Titius sent such a letter: "So-and-so to So-and-so, greetings. Use that lodging, for as long as you wish, all the upper apartments, free of charge; and I make it known to you by this letter that you do this in accordance with my intention": I ask whether his heirs can forbid him the habitation. He replied that, according to the matters proposed, his heirs can change the intention.
Qui id, quod ex causa donationis stipulanti spoponderat, solvi constituit, actione constitutae pecuniae non in solidum, sed in quantum facere potest convenitur: causam enim et originem constitutae pecuniae, non iudicii potestatem praevalere placuit. sed et condemnatus ex causa donationis in actione iudicati non frustra desiderat in quantum facere potest conveniri.
He who, on account of a donation, had promised by stipulation (stipulatio) and then by a constitutum undertook that it be paid, is sued by the action for money constituted (actio de pecunia constituta) not for the whole (in solidum), but to the extent that he is able to perform (in quantum facere potest); for it has been decided that the cause and origin of the constituted money should prevail, not the power of the action. But even one condemned by reason of a donation, in the action on the judgment (actio iudicati), does not vainly demand to be proceeded against only to the extent that he is able to perform (in quantum facere potest).
Si, cum primus tibi donare vellet et tu donandi secundo voluntatem haberes, primus secundo ex voluntate tua stipulanti promiserit, perficitur donatio et, quia nihil primus secundo, a quo convenitur, donavit, et quidem in solidum, non in id quod facere potest condemnatur. idque custoditur et si delegante eo, qui donationem erat accepturus, creditori eius donator promiserit: et hoc enim casu creditor suum negotium gerit.
If, when the first wished to donate to you and you had the will that the donation be to the second, the first has promised to the second, stipulating, in accordance with your will, the donation is perfected; and, because the first has donated nothing to the second, by whom he is sued, he is condemned for the whole, not merely to the extent that he can perform. And this is likewise maintained if, upon the delegation by him who was going to receive the donation, the donor has promised to his creditor: for in this case the creditor is managing his own business.
Ad eum, quem manumiserat, epistulam misit in haec verba: " titius sticho liberto suo salutem. cum te manumiserim, peculium quoque tuum omne, quidquid habes tam in nominibus quam in rebus moventibus sive in numerato, me tibi concedere hac epistula manu mea scripta notum tibi facio". eundem libertum testamento ex besse scripsit heredem, sempronium ex triente: nec peculium sticho legavit nec actiones praestari iussit. quaesitum est, utrum in assem sticho actio detur eorundem nominum, quae in peculio habuit, an utrisque heredibus pro portionibus hereditariis.
To the one whom he had manumitted he sent a letter in these words: " Titius to Stichus, his freedman, greetings. Since I have manumitted you, I make it known to you by this letter written by my own hand that I grant to you also your entire peculium, whatever you have both in credits (nomina) and in movable things or in ready money." He appointed the same freedman by will as heir to two-thirds (ex besse), and Sempronius to one-third (ex triente); nor did he bequeath the peculium to Stichus nor order that the actions be provided. The question was asked whether an action is given to Stichus for the whole amount (in assem) of the same claims which he had in the peculium, or to both heirs in proportion to their hereditary shares.
Lucius titius fundum maeviae donavit et ante traditionem eundem fundum post dies paucos seio pignori obligavit et intra dies triginta maeviam in vacuam possessionem eiusdem fundi induxit: quaero, an donatio perfecta sit. respondit secundum ea quae proponerentur perfectam: verum creditorem firmam pignoris obligationem habere.
Lucius titius donated a farm to Maevia, and before delivery of the same farm, after a few days, he obligated that same farm in pledge to Seius, and within thirty days he inducted Maevia into vacant possession of the same farm: I ask whether the donation is perfected. He answered that, according to the matters proposed, it is perfected; but that the creditor has a firm obligation of the pledge.
Avia sub nomine labeonis nepotis sui mutuam pecuniam dedit, et usuras semper cepit et instrumenta debitorum a labeone recepit, quae in hereditate eius inventa sunt: quaero, an donatio perfecta esse videatur. respondit, cum debitor labeoni obligatus est, perfectam donationem esse.
The grandmother, under the name of her grandson Labeo, gave money as a loan, and always took interest and received from Labeo the instruments of the debtors, which were found in his inheritance: I ask whether the donation appears to have been perfected. He responded: when the debtor is obligated to Labeo, the donation is perfected.
Iulianus libro septimo decimo digestorum tres esse species mortis causa donationum ait, unam, cum quis nullo praesentis periculi metu conterritus, sed sola cogitatione mortalitatis donat. aliam esse speciem mortis causa donationum ait, cum quis imminente periculo commotus ita donat, ut statim fiat accipientis. tertium genus esse donationis ait, si quis periculo motus non sic det, ut statim faciat accipientis, sed tunc demum, cum mors fuerit insecuta.
Julianus, in the seventeenth book of the Digesta, says that there are three species of mortis causa donations: one, when someone, terrified by no fear of present danger, but by the sole cogitation of mortality, makes a gift; he says another species of mortis causa donations is when someone, moved by an impending danger, so gives that it immediately becomes the recipient’s; he says the third genus of donation is if someone, moved by danger, does not so give as to make it at once the recipient’s, but only then, when death has followed.
Qui pretio accepto hereditatem praetermisit, sive ad substitutum perventura sit hereditas, sive ab eo ab intestato successurus, mortis causa capere videtur: nam quidquid propter alicuius mortem obvenit, mortis causa capitur: quam sententiam et iulianus probat et hoc iure utimur. nam et quod a statulibero condicionis implendae causa capitur vel a legatario, mortis causa accipitur: et quod pater dedit propter mortem filii vel cognati, mortis causa capi iulianus scripsit.
He who, having accepted a price, has passed over the inheritance—whether the inheritance is going to come to a substitute, or he would succeed from him ab intestato—is deemed to take on account of death; for whatever accrues on account of someone’s death is taken on account of death: which opinion Julian also approves, and we use this rule. For even what is taken by a statuliber for the purpose of fulfilling the condition, or by a legatee, is received on account of death; and Julian wrote that what a father gave on account of the death of a son or of a kinsman is taken on account of death.
Marcellus notat: in mortis causa donationibus etiam facti quaestiones sunt. nam et sic potest donari, ut omnimodo ex ea valetudine donatore mortuo res non reddatur: et ut reddatur, etiamsi prior ex eadem valetudine donator decesserit, si tamen mutata voluntate restitui sibi voluerit. sed et sic donari potest, ut non aliter reddatur, quam si prior ille qui acceperit decesserit.
Marcellus notes: in donations mortis causa there are also questions of fact. For it can be donated in such a way that, if the donor dies of that illness, the thing is in no wise to be returned; and in such a way that it is to be returned, even if the donor has died first of that same illness, if, however, with his intention changed, he wished it to be restored to himself. But it can also be donated so that it is not to be returned otherwise than if the recipient is the one who has died first.
Marcellus notat: cum testamento relinquendi, cui velint, adepti sint filii familias milites liberam facultatem, credi potest ea etiam remissa, quae donationes mortis causa fieri prohibent. paulus notat: hoc et constitutum est et ad exemplum legatorum mortis causa donationes revocatae sunt.
Marcellus notes: since sons under paternal power who are soldiers have obtained the free faculty of leaving by testament to whom they will, it can be believed that those restrictions also are remitted which forbid donations mortis causa to be made. paulus notes: this has been established, and, after the example of legacies, donations mortis causa have been made revocable.
Etsi debitor consilium creditorum fraudandorum non habuisset, avelli res mortis causa ab eo donata debet. nam cum legata ex testamento eius, qui solvendo non fuit, omnimodo inutilia sint, possunt videri etiam donationes mortis causa factae rescindi debere, quia legatorum instar optinent.
Even if the debtor had not had a plan for defrauding creditors, the thing given by him mortis causa ought to be torn away. For since legacies from the testament of one who was not solvent are in every way ineffectual, it may be thought that donations mortis causa also ought to be rescinded, because they hold the standing of legacies.
Mortis causa capimus non tunc solum, cum quis suae mortis causa nobis donat, sed et si propter alterius mortem id faciat: veluti si quis filio vel fratre suo moriente donet maevio ea condicione, ut, si convaluerit alteruter eorum, reddatur sibi res, si decesserit, maneat apud maevium.
We take a mortis causa [gift] not only then, when someone gives to us on account of his own death, but also if he does it on account of another’s death: for instance, if someone, while his son or brother is dying, gives to maevio on this condition, that, if either of them recovers, the thing be returned to himself; if he dies, let it remain with maevio.
Si donaturus mihi mortis causa debitorem tuum creditori meo delegaveris, omnimodo capere videbor tantam pecuniam, quanta a creditore meo liberatus fuero. quod si ab eodem ego stipulatus fuero, eatenus capere existimandus ero, quatenus debitor solvendo fuerit: nam et si convaluisset creditor idemque donator, condictione aut in factum actione debitoris obligationem dumtaxat reciperet.
If, intending to make me a deathbed gift, you shall have delegated your debtor to my creditor, I shall in every way be seen to take as much money as I shall have been freed from my creditor. But if I shall have stipulated from that same person, I shall be thought to take only to the extent that the debtor is solvent; for even if the creditor—being the same person as the donor—should recover, he would by a condictio or by an action in fact recover only the debtor’s obligation.
Titia chirographa debitorum suorum septicii et maevii donatura illis ageriae dedit et rogavit eam, ut ea, si decessisset, illis daret, si convaluisset, sibi redderet: morte secuta maevia titiae filia heres extitit: ageria autem, ut rogata erat, chirographa septicio et maevio supra scriptis dedit. quaeritur, si maevia heres summam, quae debebatur ex chirographis supra scriptis, petat vel ipsa chirographa, an exceptione excludi possit? respondit maeviam vel pacti conventi vel doli mali exceptione summoveri posse.
titia, intending to make a gift to her debtors septicius and maevius of the chirographs, gave them to ageria and asked her that she, if she had died, should give them to those men, but if she recovered, should return them to herself. death having followed, maevia, titia’s daughter, became heir. ageria however, as she had been asked, gave the above-written chirographs to septicius and maevius. it is asked whether, if maevia the heir should claim the sum which was owed under the above-written chirographs, or the chirographs themselves, she could be excluded by an exception. he replied that maevia can be removed either by the exception of pactum conventum or of dolus malus.
Si filio familias res mortis causa data fuerit et convaluisset, donator actionem de peculio cum patre habet: at si pater familias, cum mortis causa donationem accepisset, in adoptionem se dederit, res ipsa a donatore repetitur. nec huic similis est is, qui rem, quam mortis causa acceperat, alii porro dederit: nam donator huic non rem, sed pretium eius condiceret.
If a filiusfamilias has been given a thing mortis causa and has recovered, the donor has an action de peculio against the father: but if a paterfamilias, after receiving a mortis causa donation, has given himself in adoption, the thing itself is reclaimed by the donor. Nor is similar to this the case of one who has further given to another the thing which he had received mortis causa: for against this person the donor would bring a condictio, not for the thing, but for its price.
Si filio familias mortis causa donatum sit et vivo donatore moriatur filius, pater vivat, quaesitum est, quid iuris sit. respondit morte filii condictionem competere, si modo ipsi potius filio quam patri donaturus dederit: alioquin, si quasi ministerio eius pater usus sit, ipsius patris mortem spectandam esse. idque iuris fore et si de persona servi quaeratur.
If a mortis causa gift has been made to a son under paternal power, and while the donor is alive the son dies, the father being alive, the question has been raised what the law is. He answered that upon the son’s death the condiction lies, provided that he gave intending to donate to the son himself rather than to the father; otherwise, if, as it were, the father made use of his instrumentality, it is the father’s death that must be regarded. And the same will be the law if the question concerns the person of a slave.
Quod debitori acceptum factum esset mortis causa, si convaluerit donator, etiam tempore liberato ei potest condici: namque acceptilatione interveniente abitum ab iure pristinae obligationis eamque in huius condictionis transfusam.
What had been entered as received to the debtor in contemplation of death, if the donor has recovered, can be reclaimed from him by condictio even with the term released: for, with acceptilation intervening, there has been a departure from the law of the former obligation, and it has been transferred into this condictio.
Ubi ita donatur mortis causa, ut nullo casu revocetur, causa donandi magis est quam mortis causa donatio: et ideo perinde haberi debet atque alia quaevis inter vivos donatio. ideoque inter viros et uxores non valet et ideo nec falcidia locum habet quasi in mortis causa donatione.
Where a mortis causa gift is made in such a way that it is not to be revoked in any case, the cause of donating is rather at work than a mortis causa donation; and therefore it ought to be treated just as any other donation inter vivos. And so it is not valid between husbands and wives, and therefore the Falcidian portion has no place, as though in a mortis causa donation.
Avunculo suo debitori mortis causa donaturus quae debebat ita scripsit tabulae vel chirographum tot ubicumque sunt, inanes esse neque eum solvere debere: quaero, an heredes, si pecuniam ab avunculo defuncti petant, exceptione doli mali tueri se possint. Marcellus respondit posse: nimirum enim contra voluntatem defuncti heres petit ab eo.
Intending to make a mortis causa donation to his maternal uncle, his debtor, of what was owed, he wrote thus: that the tablets or the chirograph, in their entirety wherever they are, are void, and that he ought not to pay. I ask whether the heirs, if they demand money from the deceased’s uncle, can protect themselves by the exception of dolus malus. Marcellus replied that they can: for plainly the heir is suing him contrary to the will of the deceased.
Si mortis causa res donata est et convaluit qui donavit, videndum, an habeat in rem actionem. et si quidem quis sic donavit, ut, si mors contigisset, tunc haberet cui donatum est, sine dubio donator poterit rem vindicare: mortuo eo tunc is cui donatum est. si vero sic, ut iam nunc haberet, redderet, si convaluisset vel de proelio vel peregre redisset, potest defendi in rem competere donatori, si quid horum contigisset, interim autem ei cui donatum est.
If a thing has been donated causa mortis and the one who donated recovered, it must be considered whether he has an action in rem. And if indeed someone donated on this footing, that, if death had occurred, then he to whom it was donated would have it, without doubt the donor will be able to vindicate the thing; when he has died, then the one to whom it was donated. If, however, on this footing, that he should have it already now, to return it if he recovered or came back either from battle or from abroad, it can be defended that an action in rem lies for the donor if any of these events has occurred, in the meantime, however, for him to whom it was donated.
Mortis causa capitur, cum propter mortem alicuius capiendi occasio obvenit, exceptis his capiendi figuris quae proprio nomine appellantur. certe enim et qui hereditario aut legati aut fideicommissi iure capit, ex morte alterius nanciscitur capiendi occasionem, sed quia proprio nomine hae species capiendi appellantur, ideo ab hac definitione separantur.
One takes by reason of death, when on account of someone’s death an occasion of taking occurs, excepting those figures of taking which are called by their own proper name. For certainly even he who takes by hereditary right or by the right of a legacy or of a fideicommiss acquires from another’s death the occasion of taking; but because these species of taking are called by their own proper name, therefore they are separated from this definition.
Sine donatione autem capitur veluti pecunia, quam statuliber aut legatarius alicui condicionis implendae gratia numerat, sive extraneus sit qui accepit sive heres. eodem numero est pecunia, quam quis in hoc accipit, ut vel adeat hereditatem vel non adeat, quique in hoc accipit pecuniam, ut legatum omittat. sed et dos, quam quis in mortem mulieris a marito stipulatur, capitur sane mortis causa: cuius generis dotes recepticiae vocantur.
But something is taken without a donation, for instance, money which a statuliber or a legatee pays out to someone for the sake of fulfilling a condition, whether the one who receives it is a stranger or the heir. In the same category is money which a person receives for this purpose, that he either enter upon the inheritance or not enter upon it, and one who receives money in order to omit the legacy. But also a dowry, which someone stipulates from the husband in contemplation of the woman’s death, is certainly taken mortis causa: dowries of this kind are called recepticiae.
Si iusseris mortis causa debitorem tuum mihi aut creditori meo expromittere decem, quid iuris esset quaeritur, si iste debitor solvendo non sit. et ait iulianus, si ego stipulatus fuerim, tantam pecuniam videri me cepisse, in quantum debitor solvendo fuisset: nam et si convaluisset, inquit, donator, obligationem dumtaxat debitoris recipere deberet. si vero creditor meus stipulatus fuerit, tantam videri me pecuniam accepisse, in quantum a creditore meo liberatus essem.
If you, in contemplation of death, have ordered your debtor to promise (expromittere) ten to me or to my creditor, the question is what the law would be if that debtor is not solvent. And Julian says that, if I have stipulated, I am deemed to have taken as much money as the debtor would have been able to pay; for even if the donor, he says, had recovered, he ought only to take back the debtor’s obligation. But if my creditor has stipulated, I am deemed to have received as much money as I had been freed by my creditor.
Senatus censuit placere mortis causa donationes factas in eos, quos lex prohibet capere, in eadem causa haberi, in qua essent, quae testamento his legata essent, quibus capere per legem non liceret. ex hoc senatus consulto multae variaeque quaestiones agitantur, de quibus pauca referamus.
The Senate decreed that donations mortis causa made to those whom the law forbids to take are to be held in the same position as would be those which by testament had been bequeathed to persons to whom it would not be permitted by law to take. From this senatorial decree many and various questions are agitated, of which let us relate a few.
Sed mortis causa donatio longe differt ab illa vera et absoluta donatione, quae ita proficiscitur, ut nullo casu revocetur. et ibi qui donat illum potius quam se habere mavult: at is, qui mortis causa donat, se cogitat atque amore vitae recepisse potius quam dedisse mavult: et hoc est, quare vulgo dicatur: " se potius habere vult, quam eum cui donat, illum deinde potius quam heredem suum".
But the donation mortis causa differs far from that true and absolute donation, which thus proceeds that it is revoked in no case. And there the one who donates prefers that that man rather than himself have it; but he who donates mortis causa thinks of himself and, from love of life, prefers to have received back rather than to have given: and this is why it is commonly said: "he prefers that he himself have it rather than the one to whom he gives, then that man rather than his own heir".
Ergo qui mortis causa donat, qua parte se cogitat, negotium gerit, scilicet ut, cum convaluerit, reddatur sibi: nec dubitaverunt cassiani, quin condictione repeti possit quasi re non secuta propter hanc rationem, quod ea quae dantur aut ita dantur, ut aliquid facias, aut ut ego aliquid faciam, aut ut lucius titius, aut ut aliquid optingat, et in istis condictio sequitur.
Therefore he who gives a gift mortis causa, insofar as he has himself in mind, conducts his own business—namely, to the effect that, when he has recovered, it be returned to him; and the Cassians did not doubt that it can be reclaimed by condiction as if the thing had not ensued, for this reason: that the things which are given are given either on the understanding that you do something, or that I do something, or that Lucius Titius [does], or that something happens, and in these cases a condiction follows.
Mortis causa donatio fit multis modis: alias extra suspicionem ullius periculi a sano et in bona valetudine posito et cui ex humana sorte mortis cogitatio est: alias ex metu mortis aut ex praesenti periculo aut ex futuro, si quidem terra marique, tam in pace quam in bello et tam domi quam militiae multis generibus mortis periculum metui potest. nam et sic potest donari, ut omnimodo ex ea valetudine donatore mortuo res non reddatur, et ut reddatur, etiamsi prior ex eadem valetudine decesserit, si tamen mutata voluntate restitui sibi voluerit. et sic donari potest, ut non aliter reddatur, quam si prior ille qui accepit decesserit.
A donation mortis causa is made in many modes: sometimes outside any suspicion of peril, by one who is sane and situated in good health and who, from the human lot, has a thought of death; sometimes from fear of death, either from a present danger or from a future one, since indeed on land and sea, as much in peace as in war, and as much at home as on military service, peril of death can be feared in many kinds. For it can also be donated in such a way that, in any case, if the donor dies from that condition of health, the thing is not to be returned; and in such a way that it is to be returned, even if he has died first from that same condition, provided that, his will having changed, he desired it to be restored to himself. And it can be donated thus, that it is not to be returned otherwise than if the one who received it has died first.
Sed qui mortis causa in annos singulos pecuniam stipulatus est, non est similis ei, cui in annos singulos legatum est: nam licet multa essent legata, stipulatio tamen una est et condicio eius cui expromissum est semel intuenda est.
But he who has stipulated, mortis causa, for money for each year is not similar to him to whom a legacy has been left for each year: for although many things may have been bequeathed, nevertheless the stipulatio is one, and the condition of the person for whom it has been promised is to be considered once.
Quod condicionis implendae causa datur, licet non ex bonis mortui proficiscitur, capere tamen supra modum non poterit is, cui certum modum ad capiendum lex concessit. certe quod a statulibero condicionis implendae causa datur, indubitate modo lege concesso imputatur: sic tamen, si mortis tempore in peculio id habuit. ceterum si post mortem, vel etiam si alius pro eo dedit, quia non fuit ex his bonis, quae mortis tempore testator habuit, in eadem erunt causa, in qua sunt, quae a legatariis dantur.
What is given for the sake of fulfilling a condition, although it does not proceed from the goods of the deceased, nevertheless the one to whom the law has conceded a fixed measure for taking will not be able to take beyond the measure. Certainly, what is given by a statuliber for the sake of fulfilling the condition is, without doubt, imputed to the amount conceded by law: but only if at the time of death he had it in his peculium. Otherwise, if after death, or even if another gave it on his behalf, because it was not from those goods which the testator had at the time of death, they will be in the same case as those which are given by legatees.
Inter mortis causa donationem et omnia, quae mortis causa quis ceperit, est earum rerum differentia: nam mortis causa donatur quod praesens praesenti dat, mortis causa capi intellegitur et quod non cadit in speciem donationis. etenim cum testamento quis suo pamphilum servum suum liberum esse iussit, si mihi decem dederit, nihil mihi donasse videbitur, et tamen, si accepero a servo decem, mortis causa accepisse me convenit. idem accidit, quod quis sit heres institutus, si mihi decem dederit: nam accipiendo ab eo, qui heres institutus est, condicionis explendae eius causa, mortis causa capio.
Between a donation mortis causa and everything which someone has taken mortis causa there is a difference in these matters: for a donation mortis causa is that which a person present gives to a person present, and something is understood to be taken mortis causa even when it does not fall into the species of donation. For indeed, when by his testament someone has ordered that his slave Pamphilus be free if he shall have given me ten, he will seem to have given me nothing; and yet, if I receive ten from the slave, it is agreed that I have received it mortis causa. The same occurs where someone has been instituted heir, if he shall have given me ten: for by receiving from him who has been instituted heir, for the sake of fulfilling that condition, I take mortis causa.
Quod statuliber uni ex heredibus de peculio dedit, ei qui accepit in falcidiae rationem venit et in hereditatis petitione, item ex trebelliano restituitur. ex peculio autem videtur dari, quod statuliber donatum accepit et dedit. et quod ab alio nomine ipsius eo praesente datur, prope est, ut ab ipso datum intellegatur.
What a statuliber has given from the peculium to one of the heirs is brought into the Falcidian reckoning for the one who received it and in the hereditatis petitio; likewise it is restored under the Trebellianum. Moreover, that is considered to be given from the peculium which the statuliber has received as a gift (donation) and has handed over. And what is given by another in his name, he being present, is nearly to be understood as given by himself.
Seia cum bonis suis traditionibus factis titio cognato donationis causa cessisset, usum fructum sibi recepit et convenit, ut, si titius ante ipsam vita decessisset, proprietas ad eam rediret, si postea superstitibus liberis titii mortua fuisset, tunc ad eos bona pertinerent. igitur si res singulas heredes lucii titii vindicent, doli non inutiliter opponetur exceptio. bonae fidei autem iudicio constituto quaerebatur, an mulier promittere debeat se bona, cum moreretur, filiis titii restituturam.
Seia, after deliveries had been made, had, for the cause of a donation, ceded her goods to her kinsman Titius; she reserved the usufruct to herself, and it was agreed that, if Titius should depart life before her, the ownership would return to her; if later, she, with Titius’s children surviving, had died, then the goods should pertain to them. Therefore, if the heirs of Lucius Titius vindicate the individual things, the exception of fraud will not be opposed to no purpose. Moreover, with an action of good faith established, it was asked whether the woman ought to promise that, when she died, she would restore the goods to Titius’s sons.
A hesitation arose about not compelling the donation, which had not yet taken inception in the persons of the sons. But is it perhaps, with a caution interposed, that the prior donation—which, ownership having been transferred, had long since been perfected—is retained by reason of the law given at the outset, and the second is not promised? Was it, then, a donation of a definite condition, or one that had the intention and title of death?
but it cannot be denied that it seems to have been made mortis causa. it follows that, the earlier donation being dissolved, since seia survived titius, the subsequent one appears able to be enforced. finally, after the woman later had met her day, if titius’s children have received the security with the woman’s consent, they will be bound to contribution on account of the falcidian portion in their own person.
Cum pater in extremis vitae constitutus emancipato filio quaedam sine ulla condicione redhibendi donasset ac fratres et coheredes eius bonis contribui donationes falcidiae causa vellent, ius antiquum servandum esse respondi: non enim ad alia constitutionem pertinere, quam quae lege certa donarentur et morte insecuta quodammodo bonis auferrentur spe retinendi perempta: eum autem, qui absolute donaret, non tam mortis causa quam morientem donare.
When a father, positioned at the last extremity of life, had donated certain things to his emancipated son without any condition of return, and his brothers and coheirs wished, for the sake of the Falcidian deduction, that the donations be contributed to the estate, I replied that the ancient law must be observed: for the constitution pertains only to those things which are donated under a definite proviso and, death having ensued, are in a certain way taken from the estate, the hope of retaining them being extinguished; but he who donates absolutely donates not so much mortis causa as as one dying.
Fulcinius: inter virum et uxorem mortis causa donationem ita fieri, si donator iustissimum mortis metum habeat. neratius: sufficere existimationem donantis hanc esse, ut moriturum se putet: quam iuste nec ne susceperit, non quaerendum. quod magis tuendum est.
Fulcinius: between husband and wife a mortis causa donation is to be made thus, if the donor has a most justified fear of death. neratius: it suffices that the donor’s estimation be this, that he thinks he is going to die; whether he has conceived it justly or not is not to be inquired. This is what ought rather to be maintained.
Si servo mortis causa donatum sit, videamus, cuius mors inspici debeat, ut sit locus condictioni, domini an ipsius servi. sed magis eius inspicienda est, cui donatum esset. sed tamen post mortem ante apertas tabulas testamenti manumissum haec donatio non sequitur.
If a slave has been given a donation mortis causa, let us see whose death ought to be inspected, so that there be room for the condictio—the master’s or the slave’s own. But rather the death of the one to whom it was given must be inspected. Yet, after the death, if the slave has been manumitted before the testamentary tablets are opened, this donation does not follow (i.e., does not take effect).