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III:I De hereditatibus quae ab intestato deferuntur III:II De legitima adgnatorum successione III:III De senatusconsulto Tertulliano III:IV De senatusconsulto Orphitiano III:V De successione cognatorum III:VI De gradibus cognationis III:VII De successione libertorum III:VIII De adsignatione libertorum III:IX De bonorum possessionibus III:X De adquisitione per adrogationem III:XI De eo cui libertatis causa bona addicuntur III:XII De successionibus sublatis, quae fiebant per bonorum venditionem et ex senatusconsulto Claudiano III:XIII De obligationibus III:XIV Quibus modis re contrahitur obligatio III:XV De verborum obligatione |
III:XVI De duobus reis stipulandi et promittendi III:XVII De stipulatione servorum III:XVIII De divisione stipulationum III:XIX De inutilibus stipulationibus III:XX De fideiussoribus III:XXI De litterarum obligatione III:XXII De consensu obligatione III:XXIII De emptione et venditione III:XXIV De locatione et conductione III:XXV De societate III:XXVI De mandato III:XXVII De obligationibus quasi ex contractu III:XXVIII Per quas personas nobis obligatio adquiritur III:XXIX Quibus modis obligatio tollitur |
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3:1 On inheritances that are conferred ab intestato 3:2 On the legitimate succession of agnates 3:3 On the senatusconsultum Tertullianum 3:4 On the senatusconsultum Orphitianum 3:5 On the succession of cognates 3:6 On the degrees of cognation 3:7 On the succession of freedmen 3:8 On the assignation of freedmen 3:9 On possessions of goods 3:10 On acquisition through adrogation 3:11 On the one to whom, for the sake of liberty, goods are adjudicated 3:12 On the successions abolished, which used to be effected through sale of goods and by the senatusconsultum Claudianum 3:13 On obligations 3:14 By what modes an obligation is contracted re (by a thing) 3:15 On verbal obligation |
3:16 On two co‑parties in stipulating and promising 3:17 On the stipulation of slaves 3:18 On the division of stipulations 3:19 On ineffectual stipulations 3:20 On sureties (fideiussors) 3:21 On literal (written) obligation 3:22 On consensual obligation 3:23 On purchase and sale 3:24 On letting and hiring 3:25 On partnership 3:26 On mandate 3:27 On obligations as if from contract 3:28 Through which persons an obligation is acquired for us 3:29 By what modes an obligation is extinguished |
Intestatorum autem hereditates ex lege duodecim tabularum primum ad suos heredes pertinent. Sui autem heredes existimantur, ut et supra diximus, qui in potestate morientis fuerunt: veluti filius filia, nepos neptisve ex filio, pronepos proneptisve ex nepote filio nato prognatus prognatave. nec interest, utrum naturales sunt liberi an adoptivi.
But the inheritances of intestates, by the Law of the Twelve Tables, first pertain to their own (sui) heirs. Moreover, they are considered sui heirs, as we said above, who were in the power of the dying person: for example, a son or daughter, a grandson or granddaughter through a son, a great-grandson or great-granddaughter through a grandson, issue of a son. Nor does it matter whether the children are natural or adoptive.
To these it is necessary to be counted also those who indeed were not begotten from legitimate marriages, yet, having been given to the curiae of the cities, according to the tenor of the imperial constitutions which have been set over these matters, acquire the rights of “sui” (own heirs): and likewise those whom our constitutions have embraced, by which we ordered that, if someone has joined a woman in his contubernium not from the beginning with marital affection, yet one with whom he could have a coniugium, and has reared children from her, but afterwards, as affection advanced, has also made nuptial instruments with her and has had sons or daughters: not only those children who were brought forth after the dowry are legitimate and in the power of their fathers, but also the earlier ones, who also provided to those later born the occasion of the legitimate name: which we have judged to hold, even if no children were begotten after the dotal instrument was executed, or even if those born were taken away from this light.
Ita demum tamen nepos neptisve et pronepos proneptisve suorum heredum numero sunt, si praecedens persona desierit in potestate parentis esse, sive morte id acciderit sive alia ratione, veluti emancipatione: nam si per id tempus quo quis moreretur filius in potestate eius sit, nepos ex eo suus heres esse non potest. idque et in ceteris deinceps liberorum personis dictum intellegimus. postumi quoque, qui, si vivo parente nati essent in potestate futuri forent, sui heredes sunt.
Thus only in that case are the grandson or granddaughter and the great‑grandson or great‑granddaughter counted among the sui heirs, if the preceding person has ceased to be in the parent’s power, whether this has happened by death or by some other cause, for example by emancipation; for if, at the time when someone dies, a son is in his power, a grandson through that son cannot be a suus heir. And we understand this to be said likewise of the other, successive persons among the children. Posthumous children too, who, if born while the parent lived, would have been in his power, are sui heirs.
Sui, moreover, become heirs even while ignorant, and, although they be insane, they can exist as heirs: for from those causes by which acquisition is made to us while we are ignorant, from those causes it can also be acquired to the insane. And immediately upon the death of the parent, as it were, the dominion is continued: and therefore the authority of a tutor is not needed in the case of wards, since even while they are ignorant the inheritance is acquired to their sui heirs; nor is it acquired to an insane person by the consent of a curator, but by the law itself.
Interdum autem, licet in potestate mortis tempore suus heres non fuit, tamen suus heres parenti efficitur, veluti si ab hostibus quis reversus fuerit post mortem patris sui: ius enim postliminii hoc facit. Per contrarium evenit, ut, licet quis in familia defuncti sit mortis tempore, tamen suus heres non fiat, veluti si post mortem suam pater iudicatus fuerit reus perduellionis, ac per hoc memoria eius damnata fuerit: suum enim heredem habere non potest, cum fiscus ei succedit. sed potest dici, ipso iure esse suum heredem.
Sometimes, however, although at the time of death he was not under power and so was not an own heir, nevertheless he is made an own heir to the parent, as for instance if someone should return from the enemy after the death of his father: for the right of postliminium brings this about. By the contrary it happens that, although someone was in the household of the deceased at the time of death, nevertheless he does not become an own heir, as if after his death the father were adjudged guilty of treason (perduellio), and by this his memory were condemned: for he cannot have an own heir, since the fisc succeeds to him. But it can be said that, by operation of law, the fisc is his own heir.
Cum filius filiave et ex altero filio nepos neptisve extant, pariter ad hereditatem vocantur, nec qui gradu proximior est ulteriorem excludit: aequum enim esse videtur, nepotes neptesque in patris sui locum succedere. pari ratione et si nepos neptisque sit ex filio et ex nepote pronepos proneptisve, simul vocantur. et quia placuit, nepotes neptesque, item pronepotes proneptesque in parentis sui locum succedere, conveniens esse visum est, non in capita, sed in stirpes hereditatem dividi, ut filius partem dimidiam hereditatis habeat et ex altero filio duo pluresve nepotes alteram dimidiam.
When a son or daughter and, from another son, a grandson or granddaughter are extant, they are called together to the inheritance, nor does the one nearer in degree exclude the more remote: for it seems equitable that grandsons and granddaughters succeed into their father’s place. By the same reasoning, if there is a grandson and granddaughter from a son, and, from a grandson, a great‑grandson or great‑granddaughter, they are called together. And because it has pleased that grandsons and granddaughters, likewise great‑grandsons and great‑granddaughters, succeed into their parent’s place, it has seemed fitting that the inheritance be divided not by heads (per capita), but by stocks (per stirpes), so that a son have one half of the inheritance, and from the other son two or more grandsons have the other half.
Cum autem quaeritur, an quis suus heres existere potest: eo tempore quaerendum est quo certum est aliquem sine testamento decessisse: quod accidit et destituto testamento. hac ratione si filius exheredatus fuerit et extraneus heres institutus est, filio mortuo postea certum fuerit heredem institutum ex testamento non fieri heredem, aut quia noluit esse heres aut quia non potuit, nepos avo suus heres existet, quia quo tempore certum est intestatum decessisse patremfamilias, solus invenitur nepos. et hoc certum est.
But when the question is raised whether someone can become his own heir, the inquiry must be made at the time when it is certain that someone has died without a will; which also happens when the testament has failed. On this reasoning, if a son has been disinherited and an outsider has been instituted as heir, and, the son having died, it later becomes certain that the heir instituted by the testament does not become heir, either because he was unwilling to be heir or because he could not, the grandson will be his grandfather’s own heir, because at the time when it is certain that the paterfamilias died intestate, the grandson alone is found. And this is certain.
And although he may have been born after the death of the grandfather, nevertheless, having been conceived while the grandfather was alive, his father having died and thereafter the grandfather’s testament having been deserted, he is made his own heir. Clearly, if he was both conceived and born after the death of the grandfather, his own father having died and later the grandfather’s testament being deserted, he does not exist as his own heir to the grandfather, because by no right of cognation did he touch his father’s father. Thus neither is he among the children to the grandfather whom a son, having been emancipated, had adopted.
Emancipati autem liberi iure civili nihil iuris habent: neque enim sui heredes sunt, quia in potestate esse desierunt parentis, neque alio ullo iure per legem duodecim tabularum vocantur. sed praetor naturali aequitate motus dat eis bonorum possessionem unde liberi, perinde ac si in potestate parentis mortis tempore fuissent, sive soli sint sive cum suis heredibus concurrant. itaque duobus liberis extantibus, emancipato et qui mortis tempore in potestate fuerit, sane quidem is qui in potestate fuerit solus iure civili heres est, id est solus suus heres est: sed cum emancipatus beneficio praetoris in partem admittitur, evenit ut suus heres pro parte heres fiat.
Emancipated children, however, have no right under the civil law: for they are not his own heirs (sui heredes), because they have ceased to be in the power of their parent, nor are they called in by any other right under the Law of the Twelve Tables. But the praetor, moved by natural equity, grants to them the possession of the estate “whence the children” (unde liberi), just as if they had been in the power of the parent at the time of death, whether they are alone or compete with his own heirs. And so, with two children existing, the emancipated one and the one who was in power at the time of death, indeed the one who was in power is by civil law the sole heir—that is, the sole suus heres; but since the emancipated child is admitted to a share by the praetor’s beneficium, it comes about that the suus heres becomes heir only for a part.
But those who, having been emancipated by a parent, have given themselves into adoption are not admitted to the goods of their natural father as if they were children, provided that at the time when he dies they are in the adoptive family. For while he is alive, those emancipated by the adoptive father are admitted to the goods of the natural father just as if they had been emancipated by him and had never been in the adoptive family; and consistently, with respect to the adoptive father, they begin to be in the place of outsiders. But after the death of the natural father, those emancipated by the adoptive father both, as regards him as well, become in the position of outsiders, and, as far as concerns the goods of the natural parent, they in no way acquire the rank of children: and this has been approved for the reason that it was inequitable that it should be in the power of the adoptive father to determine to whom the goods of the natural father should pertain, whether to his own children or to the agnates.
Minus ergo iuris habent adoptivi filii quam naturales. namque naturales emancipati beneficio praetoris gradum liberorum retinent, licet iure civili perdunt: adoptivi vero emancipati et iure civili perdunt gradum liberorum et a praetore non adiuvantur. et recte: naturalia enim iura civilis ratio peremere non potest, nec quia desinunt sui heredes esse, desinere possunt filii filiaeve aut nepotes neptesve esse: adoptivi vero emancipati extraneorum loco incipiunt esse, quia ius nomenque filii filiaeve, quod per adoptionem consecuti sunt, alia civili ratione, id est emancipatione, perdunt.
Therefore adopted sons have less right than natural ones. For natural children, though emancipated, retain the rank of children by the praetor’s beneficium, although by civil law they lose it; but adopted children, when emancipated, both lose the rank of children by civil law and are not aided by the praetor. And rightly: for civil law cannot take away natural rights, nor, because they cease to be their own heirs (sui heredes), can they cease to be sons or daughters or grandsons or granddaughters; whereas adopted children, once emancipated, begin to be in the place of strangers, because the right and the name of “son” or “daughter,” which they obtained through adoption, they lose by another civil process, that is, emancipation.
These same things are observed also in that bonorum possessio which, contra the tablets of a parent’s testament, is promised to children who have been passed over; that is, when they have neither been instituted as heirs nor, as is proper, disinherited, the praetor promises it. For the praetor calls to that bonorum possessio both those who were in the power of the parent at the time of death and those emancipated; but he repels those who were in an adoptive family during the time in which the natural parent was dying.
Likewise he admits adoptive children emancipated by the adoptive father to his estate, as from intestacy, but far less against the tablets of the testament, because they cease to be in the number of the children. Nevertheless we must be admonished that those who are in an adoptive familia, or who, after the death of the natural parent, have been emancipated by the adoptive father, when the natural parent has died intestate, although they are not admitted under that part of the edict by which the children are called to the possession of goods, are yet called under another part, that is, by which the cognates of the deceased are called. Under which part they are admitted on this condition: if neither children who are sui-heirs nor emancipated children stand in the way, nor indeed any agnate intervenes; for first the praetor calls the children, both the sui-heirs and the emancipated, then the legitimate heirs, then the nearest cognates.
Sed ea omnia antiquitati quidem placuerunt: aliquam autem emendationem a nostra constitutione acceperunt, quam super his personis posuimus quae a patribus suis naturalibus in adoptionem aliis dantur. invenimus etenim nonnullos casus, in quibus filii et naturalium parentum successionem propter adoptionem amittebant et, adoptione facile per emancipationem soluta, ad neatrius patris successionem vocabantur. hoc solito more corrigentes, constitutionem scripsimus per quam definivimus, quando parens naturalis filium suum adoptandum alii dederit, integra omnia iura ita servari atque si in patris naturalis potestate permansisset nec penitus adoptio fuerit subsecuta: nisi in hoc tantummodo casu, ut possit ab intestato ad patris adoptivi venire successionem.
But all those things indeed pleased antiquity; however, they have received some emendation from our constitution, which we set forth concerning those persons who are given by their natural fathers in adoption to others. For we have found several cases in which sons were losing the succession of their natural parents on account of adoption and, the adoption easily dissolved through emancipation, were being called to the succession of neither father. Correcting this in the customary manner, we have written a constitution by which we have defined that, when a natural parent has given his son to another to be adopted, all rights are preserved intact as if he had remained in the power of his natural father and adoption had not at all ensued—except in this only case: that he can come ab intestato to the succession of the adoptive father.
But if a testament has been made by him, he (the adoptee) can pursue nothing from his estate either by the civil law or by the praetorian law—neither with bonorum possessio against the will having been acknowledged nor with an inofficious complaint instituted—since no necessity is laid upon the adoptive father either to institute him heir or to disinherit him, seeing that he is bound by no natural bond. Nor even if he has been adopted under the Sabinian senatusconsultum “from three males,” for even in such a case neither is a fourth reserved to him nor does any action for its pursuit belong to him. By our constitution, however, he is excepted whom his natural parent has undertaken to be adopted: for, both laws, as well natural as statutory, concurring in the case of this person, we have preserved the former rights to such an adoption, just as if a paterfamilias had given himself to be adrogated. These points can be gathered specifically and severally from the tenor of the aforesaid constitution.
Item vetustas, ex masculis progenitos plus diligens, solos nepotes vel neptes qui ex virili sexu descendunt ad suorum vocabat successionem, et iuri adgnatorum eos anteponebat: nepotes autem qui ex filiabus nati sunt et pronepotes ex neptibus cognatorum loco numerans, post adgnatorum lineam eos vocabat, tam in avi vel proavi materni quam in aviae vel proaviae sive paternae sive maternae successionem. divi autem principes non passi sunt talem contra naturam iniuriam sine competenti emendatione relinquere: sed cum nepotis et pronepotis nomen commune est utrisque qui tam ex masculis quam ex feminis descendunt, ideo eundem gradum et ordinem successionis eis donaverunt: sed ut aliquid amplius sit eis qui non solum naturae sed etiam veteris iuris suffragio muniuntur, portionem nepotum et neptium vel deinceps, de quibus supra diximus, paulo minuendam esse existimaverunt, ut minus tertiam partem acciperent quam mater eorum vel avia fuerat acceptura, vel pater eorum vel avus paternus sive maternus, quando femina mortua sit cuius de hereditate agitur, hisque, licet soli sint, adeuntibus adgnatos minime vocabant. et quemadmodum lex duodecim tabularum filio mortuo nepotes vel neptes vel pronepotes et proneptes in locum patris sui ad successionem avi vocat: ita et principalis dispositio in locum matris suae vel aviae eos cum iam designata partis tertiae deminutione vocat.
Likewise antiquity, favoring those sprung from males more, called to the succession of their “own” only the grandsons or granddaughters who descend from the male sex, and set them before the right of the agnates; but the grandchildren born from daughters and the great‑grandchildren from granddaughters, counting them in the rank of cognates, it summoned after the line of the agnates, both to the succession of the maternal grandfather or great‑grandfather and to that of the grandmother or great‑grandmother whether on the paternal or the maternal side. But the deified princes did not allow such an injury against nature to be left without a fitting emendation: and since the name “grandson” and “great‑grandson” is common to both those who descend from males and from females, therefore they granted to them the same degree and order of succession; only, that there might be something more for those who are fortified not only by nature but also by the suffrage of the old law, they judged that the portion of grandchildren and granddaughters, and further in descent (of whom we spoke above), should be slightly diminished—namely, that they receive less by a third than their mother or grandmother would have been about to receive, or than their father or their paternal or maternal grandfather, when it is a woman who has died whose inheritance is in question—and when these persons come in, even if they are alone, they by no means called in the agnates. And just as the Law of the Twelve Tables, the son being dead, calls the grandsons or granddaughters or great‑grandsons and great‑granddaughters in the place of their father to the succession of their grandfather, so too the imperial disposition calls them in the place of their mother or grandmother, with the diminution of a third of the share already designated.
But we, since there still remained doubt between the agnates and the aforementioned grandchildren, while the agnates were claiming for themselves one fourth part of the substance of the deceased by the authority of a certain constitution, have separated that constitution from our Code, nor did we permit it to be inserted therein from the Theodosian Code. And when our constitution was promulgated, the whole of its law was derogated, and we ordained that, with such grandchildren through a daughter or great‑grandchildren through a granddaughter and further descendants surviving, the agnates are to claim no part of the succession of the deceased for themselves, lest those who come from the transverse (collateral) line be held superior to those who descend by the straight right: which our constitution we also now sanction to obtain according to its own force and times. Nevertheless, just as antiquity established between sons and grandchildren through a son that the inheritance be divided not per capita but per stirpes, so likewise we order distribution to be made between sons and grandchildren through a daughter, and among all grandsons and granddaughters and other persons in further degree, so that each line of descent may obtain, without any diminution, the portion of its mother or father, grandmother or grandfather; and, if perchance one or two exist on one side, and on the other three or four, the one or two shall have one half, and the other three or four the other half of the inheritance.
Sunt autem adgnati, ut primo quoque libro tradidimus, cognati per virilis sexus personas cognatione iuncti, quasi a patre cognati. itaque eodem patre nati fratres adgnati sibi sunt, qui et consanguinei vocantur, nec requiritur an etiam eandem matrem habuerint. item patruus fratris filio et invicem is illi adgnatus est.
Now, agnates, as we have set forth in the first book, are cognates joined by cognation through persons of the male sex, as it were cognate on the father’s side. And so, brothers born of the same father are agnates to one another, who are also called consanguines, nor is it required that they should also have had the same mother. Likewise, a paternal uncle is an agnate to his brother’s son, and in turn he is an agnate to him.
In the same category are patruel brothers (paternal first cousins), that is, those procreated from two brothers, who are also called consobrini. By this reckoning we can also reach into further degrees of agnation. Those too who are born after their father’s death acquire the rights of consanguinity.
However, the law does not give the inheritance to all the agnates at the same time, but to those who are then in the nearest degree, once it has become certain that someone has died intestate. By adoption too the right of agnation subsists, as between natural sons and those whom their father has adopted (nor is there any doubt that they are properly called consanguinei): likewise, if any one of your other agnates, such as a brother or a paternal uncle, or finally one who is in a more remote degree, should adopt someone, it is not doubted that agnation exists between you and that person.
Ceterum inter masculos quidem adgnationis iure hereditas etiam longissimo gradu ultro citroque capitur. quod ad feminas vero ita placebat ut ipsae consanguinitatis iure tantum capiant hereditatem si sorores sint, ulterius non capiant: masculi vero ad earum hereditates, etiam si longissimo gradu sint, admittantur. qua de causa fratris tui aut patrui tui filiae vel amitae tuae hereditas ad te pertinebat, tua vero ad illas non pertinebat.
Moreover, among males, indeed, by the right of agnation, inheritance is taken even in the most remote degree, on either side. As to females, however, it was established thus: that they themselves, by the right of consanguinity, take an inheritance only if they are sisters, and do not take further; but males are admitted to their inheritances, even if they are in the most remote degree. For which cause the inheritance of your brother’s daughters or of your paternal uncle’s daughters, or of your paternal aunt, pertained to you, whereas yours did not pertain to them.
This was established for this reason, because it seemed more commodious that the laws be constituted so that, for the most part, inheritances should flow together to males. But since it was plainly inequitable that women should universally be repelled as though outsiders, the praetor admitted them to the possession of goods in that part in which he promises the possession of goods under the name of proximity: from which part they are admitted, namely thus, if neither any agnate nor a nearer cognate intervenes. And the Law of the Twelve Tables in no way introduced these provisions, but, embracing a simplicity friendly to laws, in like manner called all agnates, whether males or females of whatever degree, to succession among one another, on the model of the sui. But the middle jurisprudence, which was indeed junior to the Law of the Twelve Tables but prior to the imperial disposition, having devised a certain subtlety, introduced the aforesaid difference and utterly repelled them from the succession of agnates, with every other succession unknown, until the praetors, gradually correcting the harshness of the civil law, or supplying what was lacking, with a humane purpose added another order by their edicts and, the line of cognation introduced under the name of proximity, aided them through the possession of goods and promised to them that possession of goods which is called “whence the cognates.”
We, however, following the law of the Twelve Tables and preserving its vestiges in this part, do indeed praise the praetors for their humanity, yet we do not find that they remedied the case in full: for why, with one and the same natural degree concurring and the titles of agnation set in an equal balance both for males and for females, was it granted to males to come to the succession of all agnates, whereas for the female agnates no access at all to the succession of the agnates lay open save to the sister alone? therefore, restoring everything to fullness and equalizing the same disposition to the law of the Twelve Tables, we have sanctioned by our constitution:
"omnes legitimas personas, id est per virilem sexum descendentes, sive masculini sive feminini generis sunt, simili modo ad iura successionis legitimae ab intestato vocari secundum gradus sui praerogativam, nec ideo excludendas quia consanguinitatis iura sicuti germanae non habent."
"all legitimate persons, that is, those descending through the virile sex, whether of the masculine or feminine gender, are to be called in like manner to the rights of legitimate succession ab intestato according to the prerogative of their degree, and not therefore to be excluded because they do not have the rights of consanguinity such as full sisters (german) have."
"a iure cognationis in legitimam successionem, ut non solum fratris filius et filia secundum quod iam definivimus, ad successionem patrui sui vocentur, sed etiam germanae consanguineae vel sororis uterinae filius et filia soli, et non deinceps personae, una cum his ad iura avunculi sui perveniant, et mortuo eo qui patruus quidem est fratris sui filiis, avunculus autem sororis suae suboli, simili modo ab utroque latere succedant tamquam si omnes ex masculis descendentes legitimo iure veniant, scilicet ubi frater et soror superstites non sunt (his etenim personis praecedentibus et successionem admittentibus ceteri gradus remanent penitus semoti)":
"from the right of cognation into legitimate succession, so that not only the son and daughter of a brother, according to what we have already defined, are called to the succession of their paternal uncle (patruus), but also the son and daughter alone of a full sister on the father’s side or of a uterine sister, and not persons further down, together with these attain the rights of their maternal uncle (avunculus); and when he has died who is a paternal uncle indeed to his brother’s children, but a maternal uncle to his sister’s offspring, they in like manner succeed from both sides, as though all descending from males came by legitimate right, namely where a brother and a sister are not surviving (for with these persons taking precedence and being admitted to the succession, the other degrees remain wholly removed)":
Si plures sint gradus adgnatorum, aperte lex duodecim tabularum proximum vocat: itaque si verbi gratia sit frater defuncti et alterius fratris filius aut patruus, frater potior habetur. et quamvis singulari numero usa lex proximum vocet, tamen dubium non est quin et, si plures sint eiusdem gradus, omnes admittantur: nam et proprie proximus ex pluribus gradibus intellegitur et tamen dubium non est quin, licet unus sit gradus adgnatorum, pertineat ad eos hereditas. Proximus autem, si quidem nullo testamento facto quisque decesserit, per hoc tempus requiritur quo mortuus est is cuius de hereditate quaeritur.
If there are multiple degrees of agnates, the law of the Twelve Tables explicitly calls the nearest: and so, for example, if there is the brother of the deceased and the son of another brother or a paternal uncle, the brother is held preferable. And although the law, using the singular number, calls the nearest, nevertheless there is no doubt that, if there are several of the same degree, all are admitted: for both, properly, “nearest” is understood as between multiple degrees; and yet there is no doubt that, even if there is only one degree of agnates, the inheritance pertains to them. Moreover, the “nearest”—if indeed someone has deceased with no testament made—is determined by reference to the point in time at which he whose inheritance is in question died.
But if someone has died with a testament made, the relevant time is reckoned as that point at which it has begun to be certain that no heir will come forth from the testament: for then, properly, one is understood to have died intestate. This indeed is sometimes determined only after a long time; and in that interval it often happens that, a nearer kinsman having died, he becomes the nearest who at the testator’s death was not the nearest.
Placebat autem , in eo genere percipiendarum hereditatum successionem non esse, id est quamvis proximus, qui, secundum ea quae diximus, vocatur ad hereditatem, aut spreverit hereditatem aut, antequam adeat, decesserit, nihilo magis legitimo iure sequentes admittuntur. quod iterum praetores imperfecto iure corrigentes, non in totum sine adminiculo relinquebant, sed ex cognatorum ordine eos vocabant, utpote adgnationis iure eis recluso. sed nos nihil deesse perfectissimo iuri cupientes, nostra constitutione sanximus quam de iure patronatus, humanitate suggerente, protulimus, successionem in adgnatorum hereditatibus non esse eis denegandam, cum satis absurdum erat quod cognatis a praetore apertum est hoc adgnatis esse reclusum, maxime cum in onere quidem tutelarum et primo gradu deficiente, sequens succedit, et quod in onere obtinebat non erat in lucro permissum.
It was, moreover , the opinion that, in that kind of taking inheritances, there is no succession—that is, although the nearest, who, according to what we have said, is called to the inheritance, either has spurned the inheritance or has died before he enters upon it, those following are by the strict civil law none the more admitted. The praetors, correcting this imperfect law, did not leave them entirely without aid, but called them from the order of cognates, since the right of agnation was shut to them. But we, wishing that nothing be lacking to the most perfect law, by our constitution—which, with humanity suggesting it, we promulgated concerning the law of patronage—have ordained that succession in the inheritances of agnates is not to be denied to them, since it was quite absurd that what has been opened to cognates by the praetor is closed to agnates, especially since in the burden of tutelages, when the first degree fails, the next succeeds, and what prevailed in burden was not permitted in profit.
Ad legitimam successionem nihilo minus vocatur etiam parens qui contracta fiducia filium vel filiam, nepotem vel neptem ac deinceps, emancipat. quod ex nostra constitutione omnimodo inducitur, ut emancipationes liberorum semper videantur contracta fiducia fieri, cum apud antiquos non aliter hoc obtinebat nisi specialiter contracta fiducia parens manumisisset.
To the legitimate succession none the less there is also called the parent who, with fiducia contracted, emancipates a son or daughter, a grandson or granddaughter, and so on. Which by our constitution is in every way introduced, that emancipations of children are always deemed to be done with fiducia contracted, since among the ancients this did not obtain otherwise unless the parent had manumitted with fiducia specially contracted.
Lex duadecim tabularum ita stricto iure utebatur et praeponebat masculorum progeniem, et eos qui per feminini sexus necessitudinem sibi iunguntur adeo expellebat, ut ne quidem inter matrem et filium filiamve ultro citroque hereditatis capiendae ius daret, nisi quod praetores ex proximitate cognatorum eas personas ad successionem bonorum possessione unde cognati accommodata vocabant.
The Law of the Twelve Tables employed so strict a right and preferred the progeny of males, and it expelled to such a degree those who are joined to one through the kinship of the female sex that it did not grant even between mother and son or daughter a reciprocal right of taking an inheritance, except that the praetors, on the basis of the proximity of cognates, called such persons to succession by the bonorum possessio unde cognati accommodated for the purpose.
Sed hae iuris angustiae postea emendatae sunt. et primus quidem divus Claudius matri ad solatium liberorum amissorum legitimam eorum detulit hereditatem. Postea autem senatusconsulto Tertulliano, quod divi Hadriani temporibus factum est, plenissime de tristi successione matri, non etiam aviae deferenda cautum est: ut mater ingenua trium liberorum ius habens, libertina quattuor ad bona filiorum filiarumve admittatur intestatorum mortuorum, licet in potestate parentis est, ut scilicet, cum alieno iuri subiecta est, iussu eius adeat cuius iuri subiecta est.
But these narrow confines of the law were afterwards amended. And first indeed the deified Claudius, as a solace for children lost, conferred upon the mother their legitimate inheritance. Afterwards, however, by the Tertullian senatus-consult, which was enacted in the times of the deified Hadrian, it was most fully provided that the sad succession be awarded to the mother, not also to the grandmother: namely, that a freeborn mother possessing the right of three children, and a freedwoman the right of four, be admitted to the goods of sons or daughters who have died intestate, although she is in the potestas of a parent, provided that, since she is subject to another’s ius, she enter upon them by the order of him to whose ius she is subject.
But the children of the deceased are preferred to the mother, those who are sui or in the place of sui, whether of the first degree or of a more remote degree. And likewise, by the constitutions, the son or daughter of her own deceased daughter is set against the mother of the deceased—that is, against their own grandmother. The father of either, moreover—though not the grandfather or great‑grandfather—is put before the mother, namely when the dispute about the inheritance is among those persons alone.
but the consanguine brother excluded the mother both in the case of a son and of a daughter: the consanguine sister, however, was admitted together with the mother: but if there was a consanguine brother and sister and the mother honored with children, the brother indeed excluded the mother, while the inheritance was common, in equal parts, to the brother and the sister.
Sed nos constitutione, quam in codice nostro nomine decorato posuimus, matri subveniendum esse existimavimus, respicientes ad naturam et puerperium et periculum et saepe mortem ex hoc casu matribus illatam. ideoque impium esse credidimus, casum fortuitum in eius admitti detrimentum: si enim ingenua ter vel libertina quater non pepererit, immerito defraudabatur successione suorum liberorum; quid enim peccavit, si non plures sed paucos pepererit? et dedimus ius legitimum plenum matribus sive ingenuis sive libertinis, etsi non ter enixae fuerint vel quater, sed eum tantum vel eam qui quaeve morte intercepti sunt, ut et sic vocentur in liberorum suoram legitimam successionem.
But we, by a constitution which we have set in our Code adorned with our name, judged that aid must be brought to the mother, having regard to nature and childbed and the peril and the frequent death inflicted upon mothers from this case. And so we believed it impious that a fortuitous chance should be admitted to her detriment: for if a freeborn woman had not borne three times or a freedwoman four times, she was undeservedly being defrauded of the succession of her own children; for what did she sin, if she bore not many but few? And we have granted a full legitimate right to mothers, whether freeborn or freedwomen, even if they have not been in labor three times or four, but only as regards that son or that daughter who has been intercepted by death, so that even thus they may be called into the legitimate succession of their children.
Sed whereas previously the constitutions, scrutinizing legitimate rights, in part were assisting the mother, in part burdening her, and did not call her in solidum, but in certain cases, abstracting a third share from her, gave it to certain legitimate persons, while in others they did the contrary: it has seemed to us that, by a straight and simple path, the mother should be put before all legitimate persons and receive the succession of her children without any diminution, with the exception of the person of a brother and sister, whether they be consanguine or have only the rights of cognation; so that, just as we have set her before every other legitimate order, so we call all brothers and sisters, whether legitimate or not, together to take inheritances—provided, however, that if only sisters, whether cognate or agnate, and the mother of the deceased man or woman survive, the mother shall have one half, and all the sisters the other half; but if, the mother surviving, someone, male or female, dies intestate with a brother or brothers alone, or also with sisters, whether holding legitimate rights or only rights of cognation, the inheritance shall be distributed per capita. But just as we have provided for mothers, so they ought to look to their own issue: they should know that, if they do not request tutors for their children, or, when a tutor has been removed or excused, they neglect to request one within a year, they will deservedly be repelled from the succession of those dying under age. And although the son or daughter be born vulgo (out of wedlock), the mother can be admitted to his or her goods by the Tertullian senatus-consult.
Per contrarium autem ut liberi ad bona matrum intestatarum admittantur, senatusconsulto Orphitiano effectum est, quod latum est Orphito et Rufo consulibus, divi Marci temporibus. et data est tam filio quam filiae legitima hereditas, etiamsi alieno iuri subiecti sunt: et praeferuntur et consanguineis et adgnatis defunctae matris. Sed cum ex hoc senatusconsulto nepotes ad aviae successionem legitimo iure non vocabantur, postea hoc constitutionibus principalibus emendatum est, ut ad similitudinem filioram filiarumque et nepotes et neptes vocentur.
On the other hand, however, so that children might be admitted to the goods of mothers who die intestate, effect was given by the Orphitian senatusconsult, which was passed when Orphitus and Rufus were consuls, in the times of the deified Marcus. And a legitimate inheritance was granted to both son and daughter, even if they are subject to another’s legal power: and they are preferred to both the cognates and the agnates of the deceased mother. But since by this senatusconsult grandsons were not called by legitimate right to the succession of the grandmother, afterwards this was corrected by imperial constitutions, so that, in likeness to sons and daughters, both grandsons and granddaughters are called.
It must, however, be known that successions of this kind which are tendered by the Tertullian and Orphitian decrees are not destroyed by capitis deminution, because of that rule whereby new legitimate inheritances do not perish by capitis deminution, but only those which are conferred from the Law of the Twelve Tables. Finally, it must be known that even those children who are vulgarly begotten (vulgo quaesiti, i.e., born out of wedlock) are admitted to the mother’s inheritance by this senatusconsultum.
Si ex pluribus legitimis heredibus quidam omiserint hereditatem, vel morte vel alia causa impediti fuerint quominus adeant: reliquis, qui adierint, adcrescit illorum portio et, licet ante decesserint qui adierint, ad heredes tamen eorum pertinet.
If, from among several legitimate heirs, some have omitted the inheritance, or have been impeded by death or by another cause from entering upon it: the portion of those accrues to the remaining who have entered upon it; and, although those who have entered upon it have predeceased, it nevertheless pertains to their heirs.
Post suos heredes, eosque quos inter suos heredes praetor et constitutiones vocant, et post legitimos (quo numero sunt adgnati et hi quos in locum adgnatorum tam supra dicta senatusconsulta quam nostra erexit constitutio) proximos cognatos praetor vocat. Qua parte naturalis cognatio spectatur. nam adgnati capite deminuti quique ex his progeniti sunt, ex lege duodecim tabularum inter legitimos non habentur, sed a praetore tertio ordine vocantur, exceptis solis tantummodo fratre et sorore emancipatis, non etiam liberis eorum quos lex Anastasiana cum fratribus integri iuris constitutis vocat quidem ad legitimam fratris hereditatem sive sororis, non aequis tamen partibus, sed cum aliqua deminutione quam facile est ex ipsius constitutionis verbis colligere, aliis vero adgnatis inferioris gradus, licet capitis deminutionem passi non sunt, tamen eos anteponit et procul dubio cognatis.
After one’s own heirs, and those whom among one’s own heirs the praetor and the constitutions summon, and after the legal heirs (in which number are the agnates and those whom into the place of the agnates both the aforesaid senatusconsulta and our constitution have elevated), the praetor calls the nearest cognates. In this part, natural cognation is regarded. For agnates who have suffered capitis deminution, and those begotten from them, under the Law of the Twelve Tables are not counted among the legal heirs, but are called by the praetor in the third order, with the sole exception only of a brother and sister who have been emancipated—not also their children—whom the Anastasian law, with the brothers established in unimpaired right, does indeed call to the legitimate inheritance of a brother or of a sister, yet not in equal shares, but with some diminution, which it is easy to gather from the words of that constitution itself; but as to other agnates of a lower degree, although they have not suffered capitis deminution, nevertheless he prefers the emancipated brother and sister to them, and, beyond doubt, to the cognates.
These also, who are joined in cognation collaterally through persons of the female sex, the praetor calls to succession under the title of the third degree of proximity. Children likewise who are in an adoptive family are called to the inheritance of their natural parents in this same degree. It is manifest that those commonly-begotten (illegitimate) have no agnate, since agnation is from the father, cognation from the mother, but these are understood to have no father.
by the same reasoning they cannot even be seen to be consanguine among themselves, because the right of consanguinity is a species of agnation: therefore they are only cognates to one another, just as to the mother’s cognates. and so for all those persons the possession of the goods accrues in that category by which, under the name of proximity, they are called as cognates. at this point we must also of necessity be admonished of this, that by the law of agnation someone is admitted to the inheritance even if he be in the tenth degree, whether we inquire from the Law of the Twelve Tables, or from the edict by which the praetor promises that he will give possession of the goods to the lawful heirs.
Hoc loco necessarium est exponere quemadmodum gradus cognationis numerentur. qua in re inprimis admonendi sumus, cognationem aliam supra numerari, aliam infra, aliam ex transverso, quae etiam ex latere dicitur. superior cognatio est parentium, inferior liberorum, ex transverso fratrum sororumve, eorumque qui ex his progenerantur, et convenienter patrui, amitae, avunculi, materterae.
In this place it is necessary to expound how the degrees of cognation are numbered. In which matter we must in the first place be admonished that cognation is counted one kind above, another below, another across (which is also called from the side). The superior cognation is of parents, the inferior of children, the transverse of brothers or sisters, and of those who are progenerated from these, and correspondingly of paternal uncles, paternal aunts, maternal uncles, maternal aunts.
vocatur: avunculus est matris frater, qui apud Graecos proprie 
appellatur: et promiscue 
dicitur. amita est patris soror, matertera vero matris soror: utraque 
vel apud quosdam 
appellatur.
below the great-grandson, great-granddaughter; on the collateral side the brother’s and sister’s son and daughter; and correspondingly patruus, amita, avunculus, matertera. A patruus is the father’s brother, who in Greek is called : an avunculus is the mother’s brother, who among the Greeks is properly called : and indiscriminately is said. An amita is the father’s sister, while a matertera is the mother’s sister: each is called or, among some, .
In the fourth degree: above, a great-great-grandfather, great-great-grandmother; below, a great-grandson, great-granddaughter; across, a brother’s and a sister’s grandson, granddaughter; and correspondingly a great paternal uncle, great paternal aunt (that is, the grandfather’s brother and sister), likewise a great maternal uncle, great maternal aunt (that is, the grandmother’s brother and sister), a consobrinus, consobrina (that is, those who are begotten from brothers or from sisters). But some rightly think that those are properly called consobrini who are begotten from two sisters, as it were “co-sister’s children”; those, however, who are begotten from two brothers are properly called fratres patrueles (if daughters are born from two brothers, they are called sorores patrueles); but those who are begotten from a brother and a sister are properly called amitini (the sons of your father’s sister call you consobrinus, you call them amitini). In the fifth degree: above, an atavus, atavia (a great-great-great-grandfather, great-great-great-grandmother); below, an adnepos, adneptis (a great-great-grandson, great-great-granddaughter); across, a brother’s and a sister’s great-grandson, great-granddaughter; and correspondingly a propatruus, proamita (that is, the great-grandfather’s brother and sister), a proavunculus, promatertera (that is, the great-grandmother’s brother and sister); likewise the son, daughter of a brother’s patruelis (paternal-uncle-line) cousin, of a consobrinus or consobrina, of an amitinus or amitina; more closely, a sobrino, sobrina (these are the sons or daughters of great paternal uncles, great paternal aunts, great maternal uncles, great maternal aunts). In the sixth degree are: above, a tritavus, tritavia (a fourth-great-grandfather, fourth-great-grandmother); below, a trinepos, trineptis (a triple-great-grandson, triple-great-granddaughter); across, a brother’s and a sister’s great-great-grandson, great-great-granddaughter; and correspondingly an abpatruus, abamita (that is, the great-great-grandfather’s brother and sister), an abavunculus, abmatertera (that is, the great-great-grandmother’s brother and sister); likewise the son, daughter of a propatruus, proamita, proavunculus, promatertera; likewise the grandson, granddaughter of a brother’s patruelis cousin, of a consobrinus or consobrina, of an amitinus or amitina; likewise the sobrini and sobrinae (that is, those who are begotten from brothers or sisters who are patruelis-cousins, or consobrini, or amitini). Thus far it will suffice to have shown how the degrees of cognation are counted. For from these it is clear to understand how we must also number the further degrees: namely, that every person begotten always adds a degree, so that it is far easier to answer in which numbered degree each person is than to denote anyone by the specific appellation of kinship. The degrees of agnation also are numbered in the same way.
But since truth is stamped into the minds of men more by ocular faith than through the ears, therefore we have deemed it necessary, after the narration of the degrees, that they also be inscribed in the present book; to the end that adolescents may be able both by the ears and by inspection to acquire the most perfect doctrine of the degrees.
Illud certum est, ad serviles cognationes illam partem edicti qua proximitatis nomine bonorum possessio promittitur non pertinere: nam nec ulla antiqua ege talis cognatio computabatur. sed nostra constitutione, quam pro iure patronatus fecimus (quod ius usque ad nostra tempora satis obscurum atque nube plenum et undique confusum fuerat) et hoc, humanitate suggerente, concessimus, ut si quis in servili consortio constitutus liberum vel liberos habuerit, sive ex libera sive servilis condicionis muliere, vel contra serva mulier ex libero vel servo habuerit liberos cuinscumque sexus, et ad libertatem his pervenientibus, et hi qui ex servili ventre nati sunt libertatem meruerunt, vel, dum mulieres liberae erant, ipsi in servitute eas habuerunt et postea ad libertatem pervenerunt, ut hi omnes ad successionem vel patris vel matris veniant, patronatus iure in hac parte sopito: hos enim liberos non solum in suorum parentium successionem, sed etiam alterum in alterius mutuam successionem vocavimus, ex illa lege specialiter eos vocantes, sive soli inveniantur qui in servitute nati et postea manumissi sunt, sive una cum aliis qui post libertatem parentium concepti sunt, sive ex eadem matre vel eodem patre sive ex aliis nuptiis, ad similitudinem eorum qui ex iustis nuptiis procreati sunt.
It is certain that to servile kinships that part of the edict by which, under the name of proximity, possession of goods is promised does not pertain: for neither did any ancient law reckon such kinship. But by our constitution, which we made concerning the right of patronage (which right up to our times had been quite obscure and cloud-filled and everywhere confused), we have granted this also, with humanity suggesting it: that if anyone, being in a servile consortium, has a free child or children, whether from a woman of free or of servile condition, or conversely a slave-woman has had children from a free man or a slave, of whatever sex, then, upon their arriving at liberty—both those who were born from a servile womb having earned freedom, or, while the women were free, they themselves having been in servitude with them and afterwards having come to freedom—all these shall come to the succession of either father or mother, the right of patronage in this part being laid to rest. For we have called these children not only to the succession of their own parents, but also to one another’s mutual succession, expressly calling them by that law, whether they are found alone as those who were born in servitude and afterwards manumitted, or together with others who were conceived after the parents’ freedom, whether from the same mother or the same father or from other marriages, in the likeness of those who are procreated from lawful marriages.
Repetitis itaque omnibus quae iam tradidimus, apparet, non semper eos qui parem gradum cognationis optinent pariter vocari, eoque amplius nec eum quidem qui proximior sit cognatus semper potiorem esse. cum enim prima causa sit suorum heredum quosque inter suos heredes iam enumeravimus, apparet, pronepotem vel abnepotem defuncti potiorem esse quam fratrum aut patrem matremque defuncti, cum alioquin pater quidem et mater, ut supra quoque tradidimus, primum gradum cognationis optineant, frater vero secundum, pronepos autem tertio gradu sit cognatus et abnepos quarto: nec interest in potestate morientis fuerit an non fuerit, quod vel emancipatus vel ex emancipato aut ex feminino sexu propagatus est.
Accordingly, with all that we have already handed down recalled, it appears that those who hold an equal degree of cognation are not always called equally, and, what is more, that not even he who is a nearer kinsman is always the preferable. Since the first cause is that of their own heirs, whom we have already enumerated among their own heirs, it appears that the great‑grandson or great‑great‑grandson of the deceased is preferable to the brothers or to the father and mother of the deceased, although otherwise the father and mother, as we have also set forth above, hold the first degree of cognation, the brother the second, whereas the great‑grandson is a kinsman in the third degree and the great‑great‑grandson in the fourth: nor does it matter whether he was in the power of the dying person or not, because he was either emancipated or sprung from an emancipated person or from the female sex.
Amotis quoque suis heredibus quosque inter suos heredes vocari diximus, adgnatus, qui integrum ius adgnationis habet, etiamsi longissimo gradu sit, plerumque potior habetur quam proximior cognatus: nam patrui nepos vel pronepos avunculo vel materterae praefertur. totiens igitur dicimus aut potiorem haberi eum qui proximiorem gradum cognationis obtinet, aut pariter vocari eos qui cognati sint, quotiens neque suorum heredum iure quique inter suos heredes sunt, neque adgnationis iure aliquis praeferri debeat secumdum ea quae tradidimus, exceptis fratre et sorore emancipatis, qui ad successionem fratrum vel sororum vocantur, qui et si capite deminuti sunt, tamen praeferuntur ceteris ulterioris gradus adgnatis.
With their own heirs removed as well, and those whom we said are called among one’s own heirs, the agnate who has the entire right of agnation, even if he be in the most distant degree, is for the most part held superior to a nearer cognate: for the grandson or great‑grandson of a paternal uncle is preferred to a maternal uncle or maternal aunt. So then we say either that he who holds the nearer degree of cognation is considered superior, or that those who are cognates are called equally, whenever neither by the right of one’s own heirs (sui heredes)—that is, those who are among one’s own heirs—nor by the right of agnation ought anyone to be preferred, according to what we have set forth, with the exception of a brother and sister emancipated, who are called to the succession of brothers or sisters, and who, even if diminished in status (capitis deminutio), are nevertheless preferred to the other agnates of a more remote degree.
Nunc de libertorum bonis videamus. olim itaque licebat liberto patronum suum impune testamento praeterire: nam ita demum lex duodecim tabularum ad hereditatem liberti vocabat patronum, si intestatus mortuus esset libertus, nullo suo herede relicto. itaque intestato quoque mortuo liberto, si is suum heredem reliquisset, nihil in bonis eius patrono ius erat.
Now let us consider the estates of freedmen. Formerly, therefore, it was permitted for a freedman to pass over his patron in his testament with impunity: for only in that case did the Law of the Twelve Tables call the patron to the inheritance of the freedman—if the freedman had died intestate, leaving no heir of his own. And so, even when the freedman died intestate, if he had left his own heir, the patron had no right in his estate.
and if indeed from his natural children he had left someone as his own heir, no complaint appeared: but if it was an adoptive son, it was plainly iniquitous that nothing of right should remain to the patron. For which cause afterwards, by the praetor’s edict, this iniquity of law was corrected. For when the freedman made a testament, he was ordered so to make his testament that he should leave to the patron the half part of his goods; and if he had left either nothing or less than the half part, there was given to the patron, against the testamentary tablets, possession of the half part of the goods.
but if he died intestate, having left as his own heir an adoptive son, there was likewise granted to the patron, against this “own heir,” possession of one-half of the goods. moreover, natural children were accustomed to benefit the freedman for the purpose of excluding the patron—not only those whom he had in his power at the time of death, but also those emancipated and given into adoption—provided only that they had been appointed heirs for some share, or, having been passed over, had sought, contrary to the will, possession of the goods under the edict; for those disinherited in no way repelled the patron. afterwards, by the Lex Papia, the rights of patrons who had wealthier freedmen were augmented.
for it was provided that, out of the goods of one who had left a patrimony of 100,000 sesterces and had fewer than three children, whether he died with a testament made or intestate, a virile share should be owed to the patron. and so, when a freedman had left one son or daughter as heir, a half share was owed to the patron, just as if he had died without any son or daughter; when he had left two heirs, male or female, a third part was owed to the patron; if he had left three, the patron was repelled (excluded).
Sed nostra constitutio, quam pro omnium notione Graeca lingua, compendioso tractatu habito, composuimus, ita huiusmodi causas definivit, ut si quidem libertus vel liberta minores centenariis sint, id est minus centum aureis habeant substantiam (sic enim legis Papiae summam interpretati sumus, ut pro mille sestertiis unus aureus computetur), nullum locum habeat patronus in eorum successionem, si tamen testamentum fecerint. sin autem intestati decesserint, nullo liberorum relicto, tunc patronatus ius, quod erat ex lege duodecim tabularum, integrum reservavit. cum vero maiores centenariis sint, si heredes vel bonorum possessores liberos habeant sive unum sive plures cuiuscumque sexus vel gradus, ad eos successionem parentum deduximus, omnibus patronis una cum sua progenie semotis.
But our constitution, which we composed in the Greek language for the comprehension of all, after a compendious tractate, has thus defined causes of this kind: that, if indeed a freedman or freedwoman be less than centenarii, that is, have a substance of less than one hundred aurei (for thus we have interpreted the sum of the Papian law, that for 1,000 sesterces one aureus is computed), the patron has no place in their succession, provided that they have made a testament. But if they have died intestate, no children being left, then it has preserved intact the right of patronage which was from the law of the Twelve Tables. When, however, they are greater than centenarii, if they have as heirs or possessors of goods their children, whether one or more, of whatever sex or degree, we have directed the succession of the parents to them, all patrons together with their progeny being removed.
but if they shall have died without children, then, if indeed intestate, we have called the patrons and patronesses to the whole inheritance; but if in truth they shall have made a testament, and shall have passed over their patrons or patronesses, when they had no children or, having them, disinherited them, or the mother or maternal grandfather shall have passed them over, in such a way that their testaments cannot be accused as inofficious, then by our constitution, through bonorum possessio contra tabulas, let them obtain not a half, as before, but a third part of the freedman’s goods; or let what is lacking be filled up to them from our constitution, if at any time the freedman or freedwoman shall have left to them less than a third part of their goods, and this without burden, so that from that share no legacies or fideicommissa be furnished to the children of the freedman or freedwoman, but this burden should fall back upon the coheirs; with many other cases gathered by us in the aforementioned constitution, which we perceived to be necessary for the disposition of such law, so that both patrons and patronesses and their children, and also those who come from the transverse side up to the fifth degree, be called to the succession of freedmen, as is to be understood from that constitution: that if there be children of the same patron or patroness or of two or more, the one who is nearer be called to the succession of the freedman or freedwoman, and the succession be divided per heads, not per stocks, the same rule being observed also in those who come from the transverse side. For we have made the rights of freeborn status and of libertinity in successions almost consonant.
Sed haec de his libertinis hodie dicenda sunt qui in civitatem Romanam pervenerunt, cum nec sunt alii liberti, simul et dediticiis et Latinis sublatis, cum Latinorum legitimae successiones nullae penitus erant, qui licet ut liberi vitam suam peragebant, attamen ipso ultimo spiritu simul animam atque libertatem amittebant, et quasi servoram ita bona eorum iure quodammodo peculii ex lege Iunia manumissores detinebant. postea vero senatusconsulto Largiano cautum fuerat ut liberi manumissoris, non nominatim exheredati facti, extraneis heredibus eorum in bonis Latinorum praeponerentur. quibus supervenit etiam divi Traiani edictum, quod eundem hominem, si invito vel ignorante patrono ad civitatem venire ex beneficio principis festinavit, faciebat vivum quidem civem Romanum, Latinum autem morientem.
But these things today are to be said about those freedmen who have come into Roman citizenship, since there are no other freedmen, the dediticii and the Latins having at the same time been removed, since the lawful successions of the Latins were absolutely none: who, although they spent their life as free persons, yet at their very last breath lost at once both soul and freedom, and their manumittors held their goods, as if of slaves, by a certain right of peculium under the Lex Iunia. Afterwards, however, by the senatus consultum Largianum it had been provided that the children of the manumittor, not made expressly disinherited, should be preferred to any extraneous heirs of his in the goods of the Latins. To these there also supervened the edict of the deified Trajan, which made that same man—if, with the patron unwilling or unaware, he hastened to come into citizenship by the benefice of the princeps—a Roman citizen while living indeed, but a Latin when dying.
but by our constitution, on account of the vicissitudes of such conditions and other difficulties, we decreed that, along with the Latins themselves, the Lex Junia, the senatus-consultum Largianum, and the edict of the deified Trajan be deleted in perpetuity, so that all freedmen may enjoy Roman citizenship; and, in a wondrous manner, by certain additions we transposed the very paths which led into Latinity to the taking of Roman citizenship.
In summa, quod ad bona libertorum, admonendi sumus, senatum censuisse ut, quamvis ad omnes patroni liberos qui eiusdem gradus sint aequaliter bona libertorum pertineant, tamen liceret parenti uni ex liberis adsignare libertum, ut post mortem eius solus is patronus habeatur qui adsignatus est, et ceteri liberi, qui ipsi quoque ad eadem bona, nulla adsignatione interveniente, pariter admitterentur, nihil iuris in his bonis habeant. sed ita demum pristinum ius recipiunt, si is cui adsignatus est decesserit nullis liberis relictis. Nec tantum libertum, sed etiam libertam, et non tantum filio nepotive, sed etiam filiae neptive adsignare permittitur.
In sum, with respect to the goods of freedmen, we must be reminded that the senate decreed that, although the goods of freedmen pertain equally to all the patron’s children who are of the same degree, nevertheless it is permitted to the parent to assign a freedman to one of the children, so that after his death he alone be held the patron who was assigned, and the other children, who likewise, even with no assignment intervening, would be admitted equally to the same goods, shall have no right in these goods. But they then and only then recover their former right, if the one to whom he was assigned has died leaving no children. And it is permitted to assign not only a freedman but also a freedwoman, and not only to a son or grandson, but also to a daughter or granddaughter.
However, this faculty of assigning is given to him who will have two or more children in his power, so that it may be permitted to assign to those whom he has in his power a freedman or freedwoman. Whence it was asked whether, if the one to whom he has assigned he should later emancipate, the assignment would vanish; and it was agreed that it does vanish, as seemed to Julian and to very many others.
Ius bonorum possessionis introductum est a praetore emendandi veteris iuris gratia. nec solum in intestatorum hereditatibus vetus ius eo modo praetor emendavit, sicut supra dictum est, sed in eorum quoque qui testamento facto decesserint. nam si alienus postumus heres fuerit institutus, quamvis hereditatem iure civili adire non poterat, cum institutio non valebat, honorario tamen iure bonorum possessor efficiebatur, videlicet cum a praetore adiuvabatur: sed hic e nostra constitutione hodie recte heres instituitur, quasi et iure civili non incognitus.
The law of possession of goods was introduced by the praetor for the sake of emending the old law. And not only in the inheritances of intestates did the praetor in that way emend the old law, as has been said above, but also in the case of those who have died with a testament having been made. For if a posthumous stranger had been instituted as heir, although by the civil law he could not enter upon the inheritance, since the institution was not valid, nevertheless by honorary (praetorian) law he was made possessor of the goods, namely since he was aided by the praetor: but this person, by our constitution, today is rightly instituted heir, as if not unknown even to the civil law.
Aliquando tamen neque emendandi neque impugnandi veteris iuris, sed magis confirmandi gratia pollicetur bonorum possessionem. nam illis quoque qui recte facto testamento heredes instituti sunt, dat secundum tabulas bonorum possessionem: item ab intestato suos heredes et adgnatos ad bonorum possessionem vocat: sed et remota quoque bonorum possessione, ad eos hereditas pertinet iure civili.
Sometimes, however, he promises bonorum possession not for the sake either of amending or of impugning the old law, but rather for confirming it. For even to those who have been instituted as heirs by a rightly made testament he grants bonorum possession according to the tablets; likewise, from an intestate he calls their own heirs and the agnates to bonorum possession; but even with bonorum possession removed, the inheritance pertains to them by civil law.
Quos autem praetor solus vocat ad hereditatem, heredes quidem ipso iure non fiunt (nam praetor heredem facere non potest: per legem enim tantum vel similem iuris constitutionem heredes fiunt, veluti per senatusconsultum et constitutiones principales: sed cum eis praetor dat bonorum possessionem, loco heredum constituuntur et vocantur bonorum possessores. adhuc autem et alios complures gradus praetor fecit in bonorum possessionibus dandis, dum id agebat, ne quis sine successore moriatur: nam angustissimis finibus constitutum per legem duodecim tabularum ius percipiendarum hereditatum praetor ex bono et aequo dilatavit.
Those whom the praetor calls to the inheritance by his authority alone do not indeed become heirs by the law itself (for the praetor cannot make an heir: for only through a statute or a similar constitution of law do people become heirs, as by a senatus-consult and principal—i.e., imperial—constitutions): but when the praetor grants them possession of the goods (bonorum possessio), they are established in the place of heirs and are called possessors of the goods. Moreover, the praetor also made several further degrees in granting possessions of goods, while he was aiming that no one should die without a successor: for the right of taking inheritances, confined within very narrow limits by the Law of the Twelve Tables, the praetor expanded on the basis of what is good and equitable.
Et cum de testamentis prius locutus est, ad intestatos transitum fecit. et primo loco suis heredibus, et his qui ex edicto praetoris suis connumerantur, dat bonorum possessionem quae vocatur unde liberi. secundo legitimis heredibus: tertio decem personis quas extraneo manumissori praeferebat (sunt autem decem personae hae: pater, mater, avus, avia, tam paterni quam materni, item filius, filia, nepos, neptis, tam ex filio quam ex filia, frater, soror, sive consanguinei sive uterini): quarto cognatis proximis: quinto tanquam ex familia: sexto patrono et patronae liberisque eorum et parentibus: septimo viro et uxori: octavo cognatis manumissoris.
And when he had previously spoken about testaments, he made a transition to intestates. And in the first place to his own heirs (sui heredes), and to those who by the praetor’s edict are counted among the sui, he gives the possession of the goods (bonorum possessio) which is called “unde liberi.” In the second place to the lawful (statutory) heirs: in the third to the ten persons whom he used to prefer to a stranger manumitter (now these ten persons are: father, mother, grandfather, grandmother, both paternal and maternal, likewise son, daughter, grandson, granddaughter, both from a son and from a daughter, brother, sister, whether consanguine or uterine): in the fourth to the nearest cognates: in the fifth as though from the family: in the sixth to the patron and patroness and their children and parents: in the seventh to husband and wife: in the eighth to the cognates of the manumitter.
Sed eas quidem praetoria induxit iurisdictio. nobis tamen nihil incuriosum praetermissum est, sed nostris constitutionibus omnia corrigentes, contra tabulas quidem et secundum tabulas bonorum possessiones admisimus utpote necessarias constitutas, nec non ab intestato unde liberi et unde legitimi bonorum possessiones. Quae autem in praetoris edicto quinto loco posita fuerat, id est unde decem personae, eam pio proposito et compendioso sermone supervacuam ostendimus: cum enim praefata bonorum possessio decem personas praeponebat extraneo manumissori, nostra constitutio, quam de emancipatione liberorum fecimus, omnibus parentibus eisdemque manumissoribus contracta fiducia manumissionem facere dedit, ut ipsa manumissio eorum hoc in se habeat privilegium et supervacua fiat praedicta bonorum possessio.
But indeed the praetorian jurisdiction introduced those. Nevertheless, nothing has been left by us incuriously; rather, correcting everything by our constitutions, we have admitted, as established necessities, the possessions of goods “against the tablets” and “according to the tablets,” and likewise, ab intestate, the possessions of goods “whence the children” and “whence the legitimate [heirs].” But that which had been set in the praetor’s edict in the fifth place, that is, “whence the ten persons,” we have shown to be superfluous with a pious purpose and in compendious speech: for since the aforesaid possession of goods used to prefer ten persons to a stranger manumitter, our constitution—which we made concerning the emancipation of children—granted to all parents, these same being manumitters, to effect a manumission by contracted fiducia (trust), so that their very manumission might carry this privilege in itself and the aforesaid possession of goods become superfluous.
Therefore, the aforesaid fifth bonorum possession having been removed, we restored to its rank the sixth bonorum possession that had previously existed and made it the fifth, which the praetor promises to the nearest cognates. And whereas previously in the seventh place there had been the bonorum possession “as if from the familia,” and in the eighth “unde liberi” of the patron and patroness and their parents, we have utterly vacated both by our constitution which we made concerning the ius patronatus: for when we set the successions of freedmen in the likeness of the succession of the freeborn, which we have narrowed only up to the fifth degree, so that there may be some difference between freeborn and freedmen, both the “contra tabulas” bonorum possession and the “unde legitimi” and “unde cognati” suffice for them, from which they may vindicate their rights, all punctiliousness and inextricable error of those two bonorum possessions being removed. But another bonorum possession, which is called “unde vir et uxor” and had been placed in the ninth place among the old bonorum possessions, we have both preserved in its own vigor and placed it in a higher position, that is, sixth, the old tenth bonorum possession, which was “unde cognati manumissoris,” having been rightly removed for the reasons set forth: so that only six ordinary bonorum possessions remain, strong in their own force.
The seventh followed them, which the praetors introduced with most excellent reason. For most recently the possession of goods is promised by the edict even to those for whom it is provided by law or by senatusconsult or by constitution that it be given, which the praetor, by a settled rule, did not count together either with the possessions of goods that come ab intestate or with those that are from a testament, but accommodated it as a sort of ultimate and extraordinary aid, as the matter requires, namely to those who, by laws, senatusconsults, and constitutions of the emperors, under the new law, come either from a testament or ab intestate.
Cum igitur plures species successionum praetor introduxisset easque per ordinem disposuisset et in unaquaque specie successionis saepe plures extent dispari gradu personae: ne actiones creditorum differrentur, sed haberent quos convenirent, et ne facile in possessionem bonorum defuncti mitterentur et eo modo sibi consulerent, ideo petendae bonorum possessioni certum tempus praefinivit. liberis itaque et parentibus tam naturalibus quam adoptivis in petenda bonorum possessione anni spatium, ceteris centum dierum dedit. Et si intra hoc tempus aliquis bonorum possessionem non petierit, eiusdem gradus personis adcrescit: vel si nemo ex eo sit, deinceps ceteris proinde bonorum possessionem ex successorio edicto pollicetur ac si is qui praecedebat ex eo numero non esset.
Since, therefore, the praetor had introduced several species of successions and had arranged them in order, and in each species of succession there often exist several persons of unequal degree: lest the actions of creditors be deferred, but that they might have those whom they could sue, and lest they be easily sent into possession of the goods of the deceased and in that way provide for themselves, for that reason he set a fixed time for petitioning the possession of goods. Accordingly, to children and parents, both natural and adoptive, he gave a span of a year for petitioning the possession of goods, to the others one hundred days. And if within this time someone does not seek possession of the goods, it accrues to persons of the same degree: or if there is no one from that group, then in turn he promises possession of the goods by the successorial edict to the others just as if the one who preceded were not of that number.
If, therefore, anyone has repudiated the possession of goods tendered to him, he is not awaited until the time prescribed for the possession of goods has elapsed, but immediately the others under the same edict are admitted. In petitioning for the possession of goods, each of the useful days is taken into account. But the earlier princes provided well for this case too, lest anyone should trouble himself about formally petitioning for the possessions of goods; rather, in whatever way—provided it be within the fixed times—if he shall have shown an indication of accepting it, he shall have the full benefit of them.
Est et alterius generis per universitatem successio, quae neque lege duodecim tabularum neque praetoris edicto, sed eo iure quod consensu receptum est, introducta est. Ecce enim cum paterfamilias sese in adrogationem dat, omnes res eius corporales et incorporales quaeque ei debitae sunt, adrogatori ante quidem pleno iure adquirebantur, exceptis his quae per capitis deminutionem pereunt, quales sunt operarum obligationes et ius adgnationis. usus etenim et ususfructus, licet his antea connumerabantur, attamen capitis deminutione minima eos tolli nostra prohibuit constitutio.
There is also a succession of another kind by universality (per universitatem), which was introduced not by the Law of the Twelve Tables nor by the praetor’s edict, but by that ius which has been received by consensus. For behold, when a paterfamilias gives himself into adrogation, all his things, corporeal and incorporeal, and whatever are owed to him, were formerly acquired to the adrogator with full right, except for those which perish through capitis deminution, such as obligations of services (operarum) and the right of agnation. For usus and usufruct, although they used to be counted among these, nevertheless our constitution has forbidden that they be taken away by the least capitis deminution (capitis deminutio minima).
Now, however, we have restricted the same acquisition which used to be made through adrogation to the likeness of natural parents: for nothing else save only the usufruct is acquired, both by natural fathers and by adoptive ones, through sons-in-power (filii familias) in those things which accrue to the sons from outside, their dominium being kept entire; but when an adrogated son has died in the adoptive family, even his dominium passes to the adrogator, unless there remain other persons who by our constitution take precedence over the father in those matters which cannot be acquired. But conversely, for that which he who gave himself into adoption owed, the adrogator is not bound by the law itself, but he will be proceeded against in the name of the son; and, if he is unwilling to defend him, creditors are permitted, through our competent magistrates, to possess the goods which would have been his together with the usufruct, if he had not subjected himself to another’s authority, and to dispose of them in lawful fashion.
Accessit novus casus successionis ex constitutione divi Marci. nam si hi qui libertatem acceperunt a domino in testamento, ex quo non aditur hereditas, velint bona sibi addici libertatium conservandarum causa, audiuntur. et ita rescripto divi Marci ad Popilium Rufum continetur. Verba rescripti ita se habent:
A new case of succession has been added by the constitution of the deified Marcus. For if those who have received liberty from their master in a testament, from which the inheritance is not entered upon, should wish to have the goods adjudged to themselves for the sake of conserving the liberties, they are heard. And thus it is contained in a rescript of the deified Marcus to Popilius Rufus. The words of the rescript are as follows:
"Si Virginio Valenti, qui testamento suo libertatem quibusdam adscripsit, nemine successore ab intestato existente, in ea causa bona esse coeperunt ut veniri debeant: is cuius de ea re notio est aditus rationem desiderii tui habebit, ut libertatium tam earum quae directo, quam earum quae per speciem fideicommissi relictae sunt, tuendarum gratia addicantur tibi, si idonee creditoribus caveris de solido quod cuique debetur solvendo. et hi quidem quibus directa libertas data est perinde liberi erunt ac si hereditas adita esset: hi autem quos heres rogatus est manumittere a te libertatem consequantur: nisi si non alia condicione velis bona tibi addici quam ut etiam qui directo libertatem acceperunt tui liberti fiant; nam huic etiam voluntati tuae, si ii de quorum statu agitur consentiant, auctoritatem nostram accommodamus. et ne huius rescriptionis nostrae emolumentum alia ratione irritum fiat, si fiscus bona agnoscere voluerit, et hi qui rebus nostris attendunt scient, commodo pecuniario praeferendam libertatis causam, et ita bona cogenda ut libertas his salva sit qui eam adipisci potuerunt si hereditas ex testamento adita esset."
"If, for Virginius Valens, who in his testament assigned liberty to certain persons, with no successor existing ab intestato, the goods have come into such a condition that they ought to be sold: the official to whose cognizance that matter belongs, being approached, will have regard to your desire, to the end that the goods be adjudged to you for the sake of safeguarding the liberties both of those which were left directly and of those which were left under the semblance of a fideicommiss, provided that you duly give security to the creditors for paying in full (in solidum) what is owed to each. And those, indeed, to whom direct liberty was given will be free just as if the inheritance had been entered upon; but those whom the heir was requested to manumit shall obtain liberty from you—unless you wish the goods to be adjudged to you on no other condition than that even those who received liberty directly become your freedmen; for to this your will also, if those whose status is in question consent, we lend our authority. And lest the benefit of this our rescript be rendered void by any other means, if the Fisc should wish to claim the goods, both it and those who attend to our affairs shall know that the cause of liberty is to be preferred to pecuniary advantage, and that the goods are to be collected in such a way that liberty is preserved for those who could have obtained it if the inheritance had been entered upon from the testament."
Hoc rescripto subventum est et libertatibus et defunctis, ne bona eorum a creditoribus possideantur et veneant. certe si fuerint ex hac causa bona addicta, cessat bonorum venditio; extitit enim defuncti defensor, et quidem idoneus, qui de solido creditoribus cavet. Inprimis hoc rescriptum totiens locum habet, quotiens testamento libertates datae sunt.
By this rescript aid was brought both to the liberties and to the deceased, lest their goods be possessed by creditors and be sold. Certainly, if on this ground the goods have been adjudged, the sale of the goods ceases; for there has arisen a defender of the deceased, and indeed a suitable one, who gives security to the creditors for the whole. In the first place, this rescript applies as often as liberties have been given by testament.
What then, if someone, dying intestate, has granted liberties (manumissions) by codicils and the intestate inheritance has not been entered upon? The favor of the constitution ought to have place. Certainly, if he dies testate and has granted liberty by codicils, it is doubtful to no one that it accrues.
Then the words show that there is room for the constitution when no successor ab intestato exists. Therefore, so long as it is uncertain whether one exists or not, the constitution will be in abeyance: once it begins to be certain that no one is forthcoming, then there will be room for the constitution. If the person who can be restored in full (in integrum) has abstained from the inheritance, then—although he can be restored in full—can the constitution be admitted?
This constitution was introduced for the sake of safeguarding manumissions; therefore, if no manumissions have been given, the constitution does not apply. What then, if he gave manumissions while alive or mortis causa, and, in order that there be no inquiry whether this was done in fraud of the creditors or not, for that reason they wish to have the goods adjudged to themselves—are they to be heard? And the sounder view is that they ought to be heard, even if the words of the constitution fall short.
But since we perceived that many divisions were lacking to a constitution of this kind, a most plenary constitution has been promulgated by us, into which many species have been collated, whereby the law of succession of this sort has been rendered most complete—something which anyone can recognize from the very reading of the constitution.
Erant ante praedictam successionem olim et aliae per universitatem successiones. qualis fuerat bonorum emptio quae de bonis debitoris vendendis per multas ambages fuerat introducta, et tunc locum habebat quando iudicia ordinaria in usu fuerunt: sed cum extraordinariis iudiciis posteritas usa est, ideo cum ipsis ordinariis iudiciis etiam bonorum venditiones exspiraverunt et tantummodo creditoribus datur officio iudicis bona possidere et, prout eis utile visum fuerit, ea disponere, quod ex latioribus digestorum libris perfectius apparebit.
Before the aforesaid succession there once were also other universal successions, such as the purchase of the goods (bonorum emptio), which had been introduced, for selling the goods of a debtor, through many circuitous procedures; and it then had its place when ordinary judicial proceedings were in use. But since later times have employed extraordinary proceedings, therefore, together with those ordinary proceedings, even the sales of goods (bonorum venditiones) have expired; and only to the creditors is it granted, by the office of the judge, to possess the goods and, as it shall have seemed useful to them, to dispose of them—which will appear more perfectly from the more ample books of the Digest.
Erat et ex senatusconsulto Claudiano miserabilis per universitatem adquisitio, cum libera mulier servili amore bacchata ipsam libertatem per senatusconsultum amittebat et cum libertate substantiam: quod indignum nostris temporibus esse existimantes, et a nostra civitate deleri et non inseri nostris digestis concessimus.
There was also, from the senatus-consult Claudianum, a pitiable universal acquisition, when a free woman, bacchantic with a servile love, would lose her very liberty by the senatus-consult, and with her liberty her substance; which, deeming unworthy of our times, we have ordained to be erased from our commonwealth and not to be inserted in our Digests.
Omnium autem obligationum summa divisio in duo genera deducitur: namque aut civiles sunt aut praetoriae. civiles sunt, quae aut legibus constitutae aut certe iure civili comprobatae sunt. praetoriae sunt, quas praetor ex sua iurisdictione constituit, quae etiam honorariae vocantur.
But the highest division of all obligations is derived into two kinds: for they are either civil or praetorian. Civil are those which are either constituted by laws or at any rate approved by the civil law. Praetorian are those which the praetor establishes from his own jurisdiction, which are also called honorary.
Sequens divisio in quattuor species deducitur: aut enim ex contractu sunt aut quasi ex contractu aut ex maleficio aut quasi ex maleficio. prius est, ut de his quae ex contractu sunt dispiciamus. harum aeque quattuor species sunt: aut enim re contrahuntur aut verbis aut litteris aut consensu.
The following division is deduced into four species: for either they are from contract or quasi from contract, or from delict or quasi from delict. It is first, that we should look into those which are from contract. Of these likewise there are four species: for they are contracted either by thing or by words or by letters or by consent.
Re contrahitur obligatio veluti mutui datione. mutui autem obligatio in his rebus consistit quae pondere, numero mensurave constant, veluti vino, oleo, frumento, pecunia numerata, aere, argento, auro, quas res aut numerando aut metiendo aut adpendendo in hoc damus ut accipientium fiant, et quandoque nobis non eaedem res, sed aliae eiusdem naturae et qualitatis reddantur. unde etiam mutuum appellatum sit, quia ita a me tibi datur, ut ex meo tuum fiat.
An obligation is contracted by a thing (re), as for instance by the giving of a mutuum. Now the obligation of a mutuum consists in those things which stand by weight, number, or measure, for example wine, oil, grain, money counted out, bronze, silver, gold, which things we give either by counting or by measuring or by weighing for this purpose, that they may become the recipients’, and that at some time there be restored to us not the very same things, but others of the same nature and quality. Whence it is also called mutuum, because thus it is given by me to you, that from what is mine it becomes yours.
From that contract there arises an action which is called condiction. He too who has received what was not owed from one who paid through error is bound by a real obligation; and to the claimant against him, for repetition, a condiction action is given; for a condiction can be brought against him, IF IT APPEARS THAT HE OUGHT TO GIVE, just as if he had received a loan. Hence a ward, if what was not owed has been given to him by mistake without the authority of his tutor (guardian), is not bound by the condiction for what was not owed, any more than by the dation of a loan.
Item is cui res aliqua utenda datur, id est commodatur, re obligatur et tenetur commodati actione. sed is ab eo qui mutuum accepit longe distat: namque non ita res datur ut eius fiat, et ob id de ea re ipsa restituenda tenetur. et is quidem qui mutuum accepit, si quolibet fortuito casu quod accepit amiserit, veluti incendio, ruina, naufragio aut latronum hostiumve incursu, nihilo minus obligatus permanet.
Likewise, he to whom some thing is given to be used, that is, given in commodatum, is obligated by the thing and is held by the action of commodatum. But he is far different from one who has received a mutuum: for the thing is not given in such a way that it becomes his, and on that account he is held to restore that very thing. And indeed he who has received a mutuum, if by any fortuitous chance he has lost what he received, for instance by fire, collapse, shipwreck, or an incursion of robbers or enemies, nonetheless remains obligated.
but he who has received a thing for use is indeed ordered to furnish exact diligence in guarding the thing, nor does it suffice that he has applied such diligence as he is accustomed to apply to his own affairs, if only some more diligent person could guard the thing; but he is not held for force majeure or greater accidents, provided that such an occurrence did not intervene through his fault; otherwise, if you have preferred to carry with you on a journey abroad what has been lent to you, and you have lost it either by an incursion of enemies or robbers or by shipwreck, there is no doubt that you are held to restore that thing. moreover, a thing is then properly understood to be on loan (commodated) if, with no fee received or stipulated, the thing has been given to you for use. otherwise, with a fee intervening, the use of the thing is seen to have been leased to you; for a commodatum ought to be gratuitous.
Praeterea et is apud quem res aliqua deponitur re obligatur, et actione depositi, qua et ipse de ea re quam accepit restituenda tenetur. sed is ex eo solo tenetur, si quid dolo commiserit, culpae autem nomine, id est desidiae atque neglegentiae, non tenetur: itaque securus est qui parum diligenter custoditam rem furto amisit, quia, qui neglegenti amico rem custodiendam tradidit, suae facilitati id imputare debet.
Moreover, the person with whom some thing is deposited is obligated in respect of the thing, and by the action of deposit, by which he too is held for restoring the thing which he received. But he is held only if he has committed something by fraud; under the name of fault, that is, of sloth and negligence, he is not held: therefore he is secure who lost the thing by theft, it having been kept with too little diligence, because he who handed over a thing to a negligent friend to be kept ought to impute that to his own easiness.
Creditor quoque qui pignus accepit re obligatur, qui et ipse de ea ipsa re quam accepit restituenda tenetur actione pigneraticia. sed quia pignus utriusque gratia datur, et debitoris, quo magis ei pecunia crederetur, et creditoris, quo magis ei in tuto sit creditum, placuit sufficere, quod ad eam rem custodiendam exactam diligentiam adhiberet: quam si praestiterit et aliquo fortuito casu rem amiserit, securum esse nec impediri creditum petere.
The creditor too who has received a pledge is bound by the thing, and he likewise is held, by the pigneratician action, to restore that very thing which he received. But because a pledge is given for the sake of both parties—both of the debtor, that money might the more be credited to him, and of the creditor, that what was credited might be the more in safety—it has been approved as sufficient that he apply exact diligence to the custody of that thing: which, if he has supplied it and has lost the thing by some fortuitous chance, he is secure and is not hindered from demanding the sum credited.
Verbis obligatio contrahitur ex interrogatione et responsione, cum quid dari fierive nobis stipulamur. ex qua duae proficiscuntur actiones, tam condictio, si certa sit stipulatio, quam ex stipulatu, si incerta. quae hoc nomine inde utitur, quia stipulum apud veteres firmum appellabatur, forte a stipite descendens.
An obligation by words is contracted from interrogation and response, when we stipulate that something be given or done to us. From which two actions proceed, both the condictio, if the stipulation is certain, and the action ex stipulatu, if uncertain. It uses this name on this account, because stipulum among the ancients was used to mean “firm,” perhaps descending from stipes.
utrum autem Latina an Graeca vel qua alia lingua stipulatio concipiatur, nihil interest, scilicet si uterque stipulantium intellectum huius linguae habeat: nec necesse est eadem lingua utrumque uti, sed sufficit congruenter ad interrogatum respondere: quin etiam duo Graeci Latina lingua obligationem contrahere possunt. sed haec sollemnia verba olim quidem in usu fuerunt: postea autem Leoniana constitutio lata est, quae, sollemnitate verborum sublata, sensum et consonantem intellectum ab utraque parte solum desiderat, licet quibuscumque verbis expressus est.
whether, moreover, the stipulation is conceived in Latin or Greek or in whatever other language, it makes no difference, provided that each of the stipulators has an understanding of that language: nor is it necessary for both to use the same language, but it suffices to respond congruently to the question; indeed even two Greeks can contract an obligation in the Latin language. but these solemn words were once indeed in use: afterwards, however, a Leonine constitution was enacted, which, with the solemnity of the words removed, requires only the sense and a consonant understanding on both sides, although it is expressed in whatever words.
for a fixed day (in diem), when a day is adjoined on which the money is to be paid, a stipulation is made: for example, DO YOU PROMISE TO GIVE TEN AUREI ON THE PRIMlS KALENDS OF MARCH? But that which we stipulate for a fixed day is indeed owed at once, yet it cannot be demanded before the day arrives; nor even on that very day for which the stipulation has been made can it be demanded, because that whole day ought to be granted to the payer’s discretion. For it is not certain, on the day for which it was promised, that it has not been given, before that day has elapsed.
But if you should stipulate thus TEN GOLD PIECES YEARLY, SO LONG AS I LIVE, DO YOU PROMISE TO GIVE?, the obligation is understood to be made purely and is perpetuated, because it cannot be owed for a term. But the heir, when bringing suit, will be repelled by the exception of a pact. A stipulation is made under a condition, when the obligation is deferred into some contingency, namely that if something shall have been done or not done, the stipulation becomes operative, for example IF TITIUS SHALL HAVE BEEN MADE CONSUL, DO YOU PROMISE TO GIVE FIVE GOLD PIECES?
if someone should so stipulate IF I DO NOT ASCEND THE CAPITOL, DO YOU PROMISE TO GIVE? it will be just as if he had stipulated that it be given to himself when he dies. From a conditional stipulation there is only a hope that it will be owed, and we transmit that very hope if, before the condition arises, death befalls us.
Places also are accustomed to be inserted into a stipulation, for example DO YOU PROMISE TO GIVE AT CARTHAGE? which stipulation, although it seems to be made purely, nevertheless in reality has time injected, which the promisor may use for the giving of the money at Carthage. And therefore, if someone at Rome should so stipulate, DO YOU PROMISE TO GIVE TODAY AT CARTHAGE?
the stipulation will be useless, when the counter‑promise is impossible. Conditions which refer to past or present time either immediately invalidate the obligation or do not defer it at all: for example, IF TITIUS WAS CONSUL or IF MAEVIUS IS ALIVE, DO YOU PROMISE TO GIVE? for if those things are not so, the stipulation is of no force; but if they are so, they are valid at once.
Non solum res in stipulatum deduci possunt, sed etiam facta: ut si stipulemur fieri aliquid vel non fieri. et in huiusmodi stipulationibus optimum erit poenam, subiicere, ne quantitas stipulationis in incerto sit ac necesse sit actori probare, quid eius intersit. itaque si quis ut fiat aliquid, stipuletur, ita adici poena debet?
Not only things can be brought into stipulation, but also acts: as if we stipulate that something be done or not be done. And in stipulations of this kind it will be best to subjoin a penalty, lest the quantity of the stipulation be in uncertainty and it be necessary for the plaintiff to prove what his interest is. And so, if someone stipulates that something be done, in this way ought a penalty to be added?
If it is not done thus, then do you promise to give ten aurei by way of a penalty? But if one stipulates in one and the same formulation that certain things be done and certain things not be done, a clause of this kind must be added: If anything is done contrary to those terms, or if anything which ought thus to be done is not done, then do you promise to give ten aurei by way of a penalty?
Et stipulandi et promittendi duo pluresve rei fieri possunt. stipulandi ita si post omnium interrogationem promissor respondeat SPONDEO. ut puta cum duobus separatim stipulantibus ita promissor respondeat UTRIQUE VESTRUM DARE SPONDEO: nam si prius Titio spoponderit, deinde alio interrogante spondeat, alia atque alia erit obligatio nec creduntur duo rei stipulandi esse.
And in both stipulating and promising, two or more co-parties may be constituted. For stipulating, thus, if after the questioning of all the promisor replies I PROMISE. As, for instance, when two stipulate separately, the promisor replies thus: TO EACH OF YOU I PROMISE TO GIVE: for if he first has promised to Titius, then, upon another asking, says I PROMISE, the obligation will be one and another, and the two are not considered to be co-stipulators.
Two or more parties of promising are thus constituted: MAEVIUS, DO YOU PLEDGE TO GIVE FIVE GOLD PIECES? SEIUS, DO YOU PLEDGE TO GIVE THOSE SAME FIVE GOLD PIECES? let each individually answer, I PLEDGE. From obligations of this kind, the whole is owed to each individual stipulator, and each promisor is bound for the whole.
in either obligation, however, the matter turns on one thing: and whether the one, by receiving the debt, or the other, by paying, extinguishes the obligation of all and releases all. Of two co-promisors, one can be bound purely, the other to a day or under a condition: nor will the day or the condition be an impediment to demanding it from him who is bound purely.
Servus ex persona domini ius stipulandi habet. sed hereditas in plerisque personae defuncti vicem sustinet: ideoque quod servus hereditarius ante aditam hereditatem stipulatur adquirit hereditati, ac per hoc etiam heredi postea facto adquiritur. Sive autem domino sive sibi sive conservo suo sive impersonaliter servus stipuletur, domino adquirit.
A slave, in the person of the master, has the right of stipulating. But the inheritance in many respects sustains the place of the person of the deceased: and therefore what an hereditary slave stipulates before the inheritance has been entered upon, he acquires for the inheritance, and thereby it is also acquired for the heir once he has later been made heir. Whether, however, the slave stipulates for the master or for himself or for his fellow-slave or impersonally, he acquires for the master.
The same rule of law holds also for children who are in the father’s power, as regards the causes from which they can acquire. But when a performance is contained in the stipulation, in every way it is confined to the person of the stipulator, for example if a slave stipulates that it be permitted for himself to go and bring suit: for he alone ought not to be prohibited, not also his master. A slave held in common, by stipulating, acquires for each of his masters in proportion to the share of ownership, unless he has stipulated by the order of one of them or expressly naming which of them: then indeed it is acquired for that one alone.
Stipulationum aliae iudiciales sunt, aliae praetoriae, aliae conventionales, aliae communes tam praetoriae quam iudiciales. Iudiciales sunt dumtaxat quae a mero iudicis officio proficiscuntur: veluti de dolo cautio vel de persequendo servo qui in fuga est, restituendove pretio. Praetoriae, quae a mero praetoris officio proficiscuntur, veluti damni infecti vel legatorum.
Of stipulations, some are judicial, others praetorian, others conventional, others common to both praetorian and judicial. Judicial are only those which proceed from the mere office of the judge: for example, a security concerning fraud, or for pursuing a slave who is in flight, or for restoring the price. Praetorian are those which proceed from the mere office of the praetor, for example, for damage not yet done (damnum infectum) or for legacies.
Praetorian stipulations, moreover, ought to be understood so that aedilician ones are included within them as well: for these too come from jurisdiction. Conventional are those which are conceived from the convention of both parties, that is, neither by the mandate of the judge nor by the mandate of the praetor, but from the convention of the contracting parties. Of which there are just as many kinds as there are (I might almost say) things to be contracted.
Omnis res quae dominio nostro subicitur in stipulationem deduci potest, sive illa mobilis sive soli sit. At si quis rem quae in rerum natura non est aut esse non potest dari stipulatus fuerit, veluti Stichum, qui mortuus sit, quem vivere credebat, aut hippocentaurum, qui esse non possit, inutilis erit stipulatio. Idem iuris est, si rem sacram aut religiosam, quam humani iuris esse credebat, vel publicam, quae usibus populi perpetuo eita sit, ut forum vel theatrum, vel liberum hominem, quem servum esse credebat, vel rem cuius commercium non habuit, vel rem suam, dari quis stipuletur.
Every thing that is subjected to our dominion can be reduced into stipulation, whether it be movable or of the soil. But if someone has stipulated that there be given a thing which is not in the nature of things or cannot exist—such as Stichus, who is dead, whom he believed to be alive, or a hippocentaur, which cannot exist—the stipulation will be useless. The same law applies if someone should stipulate that there be given a sacred or religious thing, which he believed to be of human law, or a public thing, which is perpetually for the uses of the people, such as a forum or a theater, or a free man, whom he believed to be a slave, or a thing with which he had no commercium, or his own thing.
nor will the stipulation be in suspense on account of this: that a public thing can be brought into private ownership, and a slave can be made from a free man, and the stipulator can acquire commercium, and the thing can cease to belong to the stipulator; rather, it is immediately invalid. likewise, conversely, although at the beginning the thing was validly brought into stipulation, if afterwards, without the promisor’s act, it comes into any of those conditions of which mention was made above, the stipulation is extinguished. and not even from the very start will such a stipulation be valid: DO YOU PROMISE TO GIVE LUCIUS TITIUS, WHEN HE SHALL BE A SLAVE?
Si quis alii quam cuius iuri subiectus sit stipuletur, nihil agit. plane solutio etiam in extranei personam conferri potest (veluti si quis ita stipuletur MIHI AUT SEIO DARE SPONDES?), ut obligatio quidem stipulatori adquiratur, solvi tamen Seio etiam invito eo recte possit, ut liberatio ipso iure contingat, sed ille adversus Seium habeat mandati actionem. quodsi quis sibi et alii, cuius iuri subiectus non sit, decem dari aureos stipulatus est, valebit quidem stipulatio: sed utrum totum debetur quod in stipulationem deductum est, an vero pars dimidia, dubitatum est: sed placet, non plus quam partem dimidiam ei adquiri.
If anyone stipulates for another than the person to whose law he is subject, he does nothing. Clearly payment can also be conferred upon the person of an outsider (for example, if someone thus stipulates DO YOU PROMISE TO GIVE TO ME OR TO SEIUS?), such that the obligation is indeed acquired to the stipulator, yet it can properly be paid to Seius even with him unwilling, so that release occurs by the law itself; but he has against Seius an action on mandate. But if someone has stipulated that ten aurei be given to himself and to another to whose law he is not subject, the stipulation will indeed be valid; but whether the whole that has been brought into the stipulation is owed, or rather only the half, has been a matter of doubt; yet the settled view is that not more than a half is acquired to him.
Praeterea inutilis est stipulatio, si quis ad ea quae interrogatus erit non respondeat, veluti si decem aureos a te dari stipuletur, tu quinque promittas, vel contra: aut si ille pure stipuletur, tu sub condicione promittas, vel contra, si modo scilicet id exprimas, id est si cui sub condicione vel in diem stipulanti tu respondeas: PRAESENTI DIE SPONDEO. nam si hoc solum respondeas: PROMITTO, breviter videris in eandem diem aut condicionem spopondisse: nec enim necesse est in respondendo eadem omnia repeti quae stipulator expresserit.
Moreover, a stipulation is useless if someone does not respond to the matters on which he has been interrogated, for example, if he stipulates that ten gold pieces be given by you, and you promise five, or the converse: or if he stipulates purely (unconditionally), and you promise under a condition, or the converse—provided, of course, that you express that, that is, if to someone stipulating under a condition or for a set day you respond: I PROMISE FOR THE PRESENT DAY. For if you reply only this: I PROMISE, you will be understood in brief to have promised for the same day or condition: for it is not necessary in responding that all the same things be repeated which the stipulator has expressed.
Mutum neque stipulari neque promittere posse palam est. quod et in surdo receptum est: quia et is qui stipulatur verba promittentis, et is qui promittit verba stipulantis audire debet. unde apparet, non de eo nos loqui qui tardius exaudit, sed de eo qui omnino non exaudit.
It is clear that a mute can neither stipulate nor promise. This is a received rule also in the case of a deaf person: because both he who stipulates ought to hear the words of the promisor, and he who promises ought to hear the words of the stipulator. Whence it appears that we are not speaking of one who is hard of hearing, but of one who does not hear at all.
An insane person can transact no business, because he does not understand what he does. A pupil conducts every business rightly; however, wherever the tutor’s authority is necessary, let the tutor be brought in—for example, if he himself is to be obligated; for he can bind another to himself even without the tutor’s authority. But what we have said about pupils is true of those who already have some understanding; for an infant and one nearest to infancy do not differ much from an insane person, because pupils of this age have no understanding. Yet for those nearest to infancy, on account of their utility, a more benign interpretation of the law has been made, so that they have the same legal position as those nearest to puberty.
Si impossibilis condicio obligationibus adiciatur, nihil valet stipulatio. impossibilis autem condicio habetur, cui natura impedimento est quo minus existat, veluti si quis ita dixerit: SI DIGITO CAELUM ATTIGERO, DARE SPONDES? at si ita stipuletur, SI DIGITO CAELUM NON ATTIGERO, DARE SPONDES? pure facta obligatio intellegitur ideoque statim petere potest.
If an impossible condition is added to obligations, the stipulation is worth nothing. impossible, however, a condition is held to be, for which nature is an impediment so that it cannot exist, as if someone should say thus: IF I SHALL HAVE TOUCHED THE SKY WITH MY FINGER, DO YOU PROMISE TO GIVE? but if he should stipulate thus, IF I SHALL NOT HAVE TOUCHED THE SKY WITH MY FINGER, DO YOU PROMISE TO GIVE? the obligation is understood to have been made purely, and therefore he can immediately demand.
Item verborum obligatio inter absentes concepta inutilis est. sed cum hoc materiam litium contentiosis hominibus praestabat, forte post tempus tales allegationes opponentibus et non praesentes esse vel se vel adversarios suos contendentibus: ideo nostra constitutio propter celeritatem dirimendarum litium introducta est, quam ad Caesarienses advocatos scripsimus, per quam disposuimus, tales scripturas quae praesto esse partes indicant omnimodo esse credendas, nisi ipse qui talibus utitur improbis allegationibus manifestissimis probationibus vel per scripturam vel per testes idoneos approbaverit, in ipso toto die quo conficiebatur instrumentum sese vel adversarium suum in aliis locis esse.
Likewise a verbal obligation concluded between absentees is invalid. But since this furnished matter for lawsuits to litigious men, who, perhaps after some time, would bring forward such allegations and contend that either they themselves or their adversaries had not been present: therefore our constitution was introduced for the speed of resolving lawsuits, which we wrote to the Caesarean advocates, through which we have ordained that such writings which indicate that the parties were present are in every way to be believed, unless the very person who uses such unscrupulous allegations shall have proved by the most manifest proofs, either by writing or by suitable witnesses, that on the very whole day on which the instrument was being executed he himself or his adversary was elsewhere.
Post mortem suam dari sibi nemo stipulari poterat, non magis quam post eius mortem a quo stipulabatur. ac ne is qui in alicuius potestate est post mortem eius stipulari poterat, quia patris vel domini voce loqui videtur. sed et si quis ita stipuletur, PRIDIE QUAM MORIAR vel PRIDIE QUAM MORIERIS DARI? inutilis erat stipulatio.
After his own death, no one could stipulate that something be given to himself, any more than after the death of the one from whom he was stipulating. And not even he who is in someone’s power could stipulate after that person’s death, because he is seen to speak with the voice of the father or master. But even if someone should so stipulate, ON THE DAY BEFORE I DIE, or ON THE DAY BEFORE YOU DIE, TO BE GIVEN? the stipulation was invalid.
but since, as has already been said, stipulations are valid by the consent of the contracting parties, it has pleased us also to introduce into this article of law a necessary emendation, namely that, whether the stipulation is conceived for after death or for the day before he will die, of either the stipulator or the promisor, the stipulation shall be valid.
Item si quis ita stipulatus erat: SI NAVIS EX ASIA VENERIT, HODIE DARE SPONDES? inutilis erat stipulatio, quia praepostere concepta est. sed cum Leo inclytae recordationis in dotibus eandem stipulationem, quae praepostera nuncupatur non esse reiciendam existimavit, nobis placuit et huic perfectum robur accommodare, ut non solum in dotibus, sed etiam in omnibus valeat huiusmodi conceptio stipulationis. Ita autem concepta stipulatio, veluti si Titius dicat CUM MORIAR, DARE SPONDES?
Likewise, if someone had stipulated thus: IF THE SHIP HAS COME FROM ASIA, DO YOU PROMISE TO GIVE TODAY? the stipulation was useless, because it was conceived preposterously. But since Leo of illustrious memory judged, in the case of dowries, that the same stipulation, which is called preposterous, ought not to be rejected, it has pleased us also to confer full force on this, so that not only in dowries, but also in all matters, a conception of stipulation of this kind shall be valid. A stipulation thus conceived, for example if Titius says WHEN I DIE, DO YOU PROMISE TO GIVE?
Quotiens plures res una stipulatione comprehenduntur, si quidem promissor simpliciter respondeat DARE SPONDEO, propter omnes tenetur: si vero unam ex his vel quasdam daturum se spoponderit, obligatio in his pro quibos spoponderit contrahitur. ex pluribus enim stipulationibus una vel quaedam videntur esse perfectae: singulas enim res stipulari et ad singulas respondere debemus.
Whenever several things are included in one stipulation, if indeed the promisor simply answers I PROMISE TO GIVE, he is held for all of them; but if he has promised that he will give one of them or certain ones, the obligation is contracted in those for which he has promised. For out of several stipulations one or some are deemed to be perfected: for we ought to stipulate for each individual thing and to respond to each individually.
Alteri stipulari, ut supra dictum est, nemo potest: inventae sunt enim huiusmodi obligationes ad hoc, ut unusquisque sibi adquirat quod sua interest: ceterum si alii detur, nihil interest stipulatoris. plane si quis velit hoc facere, poenam stipulari conveniet, ut, nisi ita factum sit ut comprehensum esset, committatur poenae stipulatio etiam ei cuius nihil interest: poenam enim cum stipulatur quis, non illud inspicitur, quid intersit eius, sed quae sit quantitas sita in condicione stipulationis. ergo si quis stipuletur Titio dari, nihil agit; sed si addiderit poenam NISI DEDERIS, TOT AUREOS DARE SPONDES? tunc committitur stipulatio.
No one can stipulate for another, as said above: for obligations of this sort were devised for this, that each person acquire for himself that which is of his own interest; but if it be given to someone else, nothing concerns the stipulator. Clearly, if someone wishes to do this, it will be fitting to stipulate a penalty, so that, unless it has been done as it was included, the stipulation for a penalty is incurred even by one whose interest is nothing: for when someone stipulates a penalty, it is not considered what his interest is, but what the amount set in the condition of the stipulation is. Therefore, if someone stipulates that it be given to Titius, he does nothing; but if he has added a penalty, UNLESS YOU HAVE GIVEN, DO YOU PROMISE TO GIVE SO MANY GOLD PIECES? then the stipulation is incurred.
But if someone stipulates for another, when it is to his interest, it is established that the stipulation is valid. For if one who had begun to administer the guardianship of a ward yielded the administration to his co-guardian and stipulated that the ward’s property would be kept safe, since it is in the stipulator’s interest that what he stipulated be done—inasmuch as he would be obligated to the ward if he managed the matter badly—the obligation holds. Therefore, even if someone has stipulated that it be given to his procurator, the stipulation will have force.
and even if to his creditor, insofar as it concerns his own interest—lest perhaps either the penalty be incurred, or the estates which had been given in pledge be sold off—the stipulation is valid. Conversely, one who has promised that another will do something seems to be in such a case that he is not bound, unless he himself has promised a penalty.
Item nemo rem suam futuram in eum casum quo sua fit, utiliter stipulatur. Si de alia re stipulator senserit, de alia promissor, perinde nulla contrahitur obligatio ac si ad interrogatum responsum non esset, veluti si hominem Stichum a te stipulatus quis fuerit, tu de Pamphilo senseris, quem Stichum vocari credideris. Quod turpi ex causa promissum est, veluti si quis homicidium vel sacrilegium se facturum promittat, non valet.
Likewise, no one validly stipulates for a thing to be his own, in the contingency by which it becomes his own. If the stipulator has meant one thing and the promisor another, no obligation is contracted, just as if no answer had been returned to the interrogatory—for example, if someone has stipulated from you for the slave Stichus, but you had in mind Pamphilus, whom you believed to be called Stichus. What is promised from a base cause, as if someone should promise that he will commit homicide or sacrilege, is not valid.
Cum quis sub aliqua condicione fuerit stipulatus, licet ante condicionem decesserit, postea existente condicione, heres eius agere potest. idem est et a promissoris parte. Qui hoc anno aut hoc mense dari stipulatus sit, nisi omnibus partibus praeteritis anni vel mensis non recte petet.
When someone has stipulated under some condition, although he may have died before the condition, once the condition later exists, his heir can bring an action. The same holds also on the part of the promisor. One who has stipulated that it be given this year or this month will not rightly demand it unless all the parts of the year or of the month have elapsed.
Pro eo qui promittit solent alii obligari, qui fideiussores appellantur, quos homines accipere solent dum curant ut diligentius sibi cautum sit. In omnibus autem obligationibus adsumi possunt, id est sive re sive verbis sive litteris sive consensu contractae fuerint. ac ne illud quidem interest, utrum civilis an naturalis sit obligatio cui adiciatur fideiussor, adeo quidem ut pro servo quoque obligetur, sive extraneus sit qui fideiussorem a servo accipiat, sive ipse dominus in id quod sibi naturaliter debetur.
For the one who promises, others are wont to be obligated, who are called fideiussors (sureties), whom people are accustomed to take, while they see to it that provision be made more carefully for their own security. And they can be assumed in all obligations, that is, whether they have been contracted real, verbal, literal, or consensual. Nor does it even matter whether the obligation to which a fideiussor is added is civil or natural—indeed, to such an extent that one is bound even on behalf of a slave, whether it be an outsider who receives a fideiussor from a slave, or the master himself, for that which is naturally owed to him.
Si plures sint fideiussores, quotquot erunt numero, singuli in solidum tenentur. itaque liberum est creditori, a quo velit solidum petere. sed ex epistula divi Hadriani compellitur creditor a singulis qui modo solvendo sint litis contestatae tempore partes petere.
If there are several sureties, however many they are in number, each is held for the whole. Therefore it is free to the creditor to demand the whole from whom he wishes. But by a letter of the deified Hadrian the creditor is compelled to seek shares from each of those who are solvent at the time of litis contestatio.
and therefore, if any one of the sureties is not solvent at that time, this burdens the rest. But also, if the creditor has obtained the whole from one surety, the loss will be this one’s alone, if he for whom he stood as surety is not solvent: and he ought to impute it to himself, since he could have been aided by the epistle of the deified Hadrian, and to desire that an action be given against him for his share. Sureties cannot be bound in such a way as to owe more than he owes for whom they are bound: for their obligation is an accession of the principal obligation, nor can there be more in the accession than in the principal thing. But conversely, they can be bound so as to owe less.
and so, if the principal has promised ten aurei, the surety is directly obligated for five; conversely, he cannot be obligated [for more]. likewise, if he has promised purely (unconditionally), the surety can promise under a condition; conversely, he cannot. for “less” and “more” are understood not only in quantity, but also in time.
Si quid autem fideiussor pro reo solverit, eius reciperandi causa habet cum eo mandati indicium. Graece fideiussor plerumque ita accipitur: 
sive 
: sed et si 
dixerit, pro eo erit ac si dixerit, 
In stipulationibus fideiussorum sciendum est generaliter hoc accipi, ut, quodcumque scriptum sit quasi actum, videatur etiam actum: ideoque constat, si quis se scripserit fideiussisse, videri omnia sollemniter acta.
But if the surety has paid anything on behalf of the defendant, for the sake of recovering it he has against him an action of mandate. In Greek the surety is for the most part taken thus: or : but even if he should say , it will be as if he had said In stipulations of sureties it must generally be understood thus: that whatever is written, as though transacted, is deemed also to have been transacted; and therefore it is established that, if someone has written that he has stood surety, everything is considered to have been solemnly performed.
Plane si quis debere se scripserit quod numeratum ei non est, de pecunia minime numerata post multum temporis exceptionem opponere non potest: hoc enim saepissime constitutum est. sic fit ut et hodie, dum queri non potest. scriptura obligetur: et ex ea nascitur condictio, cessante scilicet verborum obligatione.
Clearly, if anyone has written that he owes what has not been counted out to him, he cannot, after much time, oppose the exception of money not counted out: for this has been very often established. thus it comes about that even today, while complaint cannot be made. the writing is binding: and from it a condictio arises, the obligation by words, namely, having ceased.
A long time, moreover, in this exception previously indeed by imperial constitutions it used to extend up to five years; but, lest creditors might perhaps be defrauded of their monies for a longer time, by our constitution the time has been curtailed, so that beyond the bounds of two years an exception of this kind is by no means extended.
Consensu fiunt obligationes in emptionibus venditionibus, locationibus conductionibus, societatibus, mandatis. Ideo autem istis modis consensu dicitur obligatio contrahi, quia neque scriptura neque praesentia omnimodo opus est, ac ne dari quidquam necesse est, ut substantiam capiat obligatio, sed sufficit eos qui negotium gerunt consentire. Unde imter absentes quoque talia negotia contrahuntur, veluti per epistulam aut per nuntium.
Obligations come about by consent in purchases and sales, lettings and hirings, partnerships, and mandates. It is for this reason that in these modes the obligation is said to be contracted by consent: because neither writing nor presence is at all required, and it is not necessary that anything be given for the obligation to take on substance; rather, it suffices that those who conduct the business consent. Whence also among absentees such transactions are contracted, as by letter or by messenger.
Emptio et venditio contrahitur simulatque de pretio convenerit, quamvis nondum pretium numeratum sit ac ne arra quidem data fuerit. nam quod arrae nomine datur argumentum est emptionis et venditionis contractae. sed haec quidem de emptionibus et venditionibus quae sine scriptura consistunt obtinere oportet: nam nihil a nobis in huiusmodi venditionibus innovatum est.
Purchase and sale are contracted as soon as there is agreement about the price, although the price has not yet been counted out and not even earnest-money (arra) has been given. For what is given under the name of arra is evidence that a purchase and sale have been contracted. But these points ought to obtain with respect to purchases and sales which stand without writing: for nothing has been innovated by us in sales of this kind.
But in those cases which are executed by writing, we establish that a purchase and sale is not perfected otherwise, unless the instruments of purchase have been conscribed either in the proper hand of the contracting parties, or written indeed by another but subscribed by the contracting party, and, if they are done through a tabellion, unless they have also received the completions and have been finalized between the parties. For so long as anything of these is lacking, there is room for repentance, and the buyer or the seller can withdraw from the purchase without penalty. However, we grant them to withdraw with impunity only unless something has already been given in the name of arras (earnest-money): for this having ensued, whether the sale has been celebrated in writings or without writings, the one who refuses to fulfill the contract—if he is the buyer, loses what he gave; but if the seller, he is compelled to restore double—even though nothing has been expressly stated about the arras.
Pretium autem constitui oportet: nam nulla emptio sine pretio esse potest. sed et certum pretium esse debet. alioquin si ita inter aliquos convenerit, ut, quanti Titius rem aestimaverit, tanti sit empta: inter veteres satis abundeque hoc dubitabatur, sive constat venditio sive non.
But the price ought to be constituted: for no purchase can exist without a price. And the price must also be certain. Otherwise, if it has been agreed between some persons thus, that, for as much as Titius shall have appraised the thing, for that amount it shall be bought: among the ancients this was quite abundantly a matter of doubt, whether the sale is constituted or not.
but our decision has established this in such a way: whenever a sale has been arranged thus, HOW MUCH HE SHALL HAVE APPRAISED IT, the contract stands under this condition, that, if indeed the very person who was named shall have defined the price, then in every way according to his estimation both the price be paid in full and the thing be delivered, so that the sale may be brought to effect, the buyer proceeding by the action from purchase, and the seller by the action from sale. But if the person who was named either was unwilling or was not able to define the price, then the sale is as nothing, as if no price had been stipulated. Since this rule has pleased us in sales, it is not absurd to extend it also to leases and hirings.
Item pretium in numerata pecunia consistere debet. nam in ceteris rebus an pretium esse possit, veluti homo aut fundus aut toga alterius rei pretium esse possit, valde quaerebatur. Sabinus et Cassius etiam in alia re putant posse pretium consistere: unde illud est quod vulgo dicebatur, per permutationem rerum emptionem et venditionem contrahi, eamque speciem emptionis venditionisque vetustissimam esse: argumentoque utebantur Graeco poeta Homero, qui aliqua parte exercitum Achivorum vinum sibi comparasse ait permutatis quibusdam rebus, his verbis: 
Likewise, the price ought to consist in counted money. For whether in other things a price can exist—such as whether a person (a slave), or an estate, or a toga could be the price of another thing—was much debated. Sabinus and Cassius think that the price can also consist in another thing; whence comes that saying commonly reported, that purchase and sale are contracted by permutation (exchange) of things, and that this species of purchase and sale is the most ancient. And they used as an argument the Greek poet Homer, who in some passage says that the army of the Achaeans procured wine for themselves by exchanging certain things, in these words:
diversae scholae auctores contra sentiebant, aliudque esse existimabant permutationem rerum, aliud emptionem et venditionem. alioquin non posse rem expediri, permutatis rebus, quae videatur res venisse et quae pretii nomine data esse: nam utramque videri et venisse et pretii nomine datam esse, rationem non pati. sed Proculi sententia, dicentis permutationem propriam esse speciem contractus a venditione separatam, merito praevaluit, cum et ipse aliis Homericis versibus adiuvatur et validioribus rationibus argumentatur.
the authors of a different school felt otherwise, and thought that the permutation (barter) of things is one thing, purchase and sale another. otherwise the matter cannot be disentangled, when things are exchanged, as to which thing should seem to have been sold and which to have been given under the name of price: for that each would seem both to have been sold and to have been given under the name of price, reason does not allow. but the opinion of Proculus, saying that permutation (barter) is a proper species of contract separated from sale, has deservedly prevailed, since he himself is aided by other Homeric verses and argues with stronger reasons.
Cum autem emptio et venditio contracta sit (quod effici diximus, simulatque de pretio convenerit, cum sine scriptura res agitur), periculum rei venditae statim ad emptorem pertinet, tametsi adhuc ea res emptori tradita non sit. itaque si homo mortuus sit vel aliqua parte corporis laesus fuerit, aut aedes totae aut aliqua ex parte incendio consumptae fuerint, aut fundus vi fluminis totus vel aliqua ex parte ablatus sit, sive etiam inundatione aquae aut arboribus turbine deiectis longe minor aut deterior esse coeperit, emptoris damnum est, cui necesse est, licet rem non fuerit nactus, pretium solvere. quidquid enim sine dolo et culpa venditoris accidit, in eo venditor securus est.
But when purchase and sale have been contracted (which we have said is effected as soon as there is agreement concerning the price, when the matter is transacted without writing), the peril of the thing sold at once pertains to the buyer, although that thing has not yet been delivered to the buyer. And so, if a person has died or has been injured in some part of the body, or a house has been consumed by fire wholly or in part, or a landed estate has been carried off wholly or in part by the force of a river, or even by inundation of water or by trees thrown down by a whirlwind has begun to be far smaller or worse, the loss is the buyer’s, who must, although he has not obtained the thing, pay the price. For whatever happens without the fraud or fault of the seller, in that the seller is secure.
but also if after the purchase something has accrued to the estate by alluvion, it pertains to the buyer’s advantage: for the advantage ought to be his whose peril it is. But if the person who was sold has fled, or has been stolen, such that neither fraud nor fault of the seller intervenes, it will have to be considered whether the seller undertook his custody up to delivery. Indeed, if he did undertake it, that mishap pertains to his peril; if he did not undertake it, he will be secure.
we understand the same also in regard to the other animals and the other things. in any case, however, he ought to furnish to the buyer the vindication of the thing and the condiction, since clearly he who has not yet delivered the thing to the buyer is still himself the owner. the same holds also concerning the action for theft and the action for wrongful damage.
Purchase can be contracted both under a condition and purely. under a condition, for example: IF STICHUS PLEASES YOU WITHIN A CERTAIN DAY, HE SHALL BE BOUGHT FOR YOU FOR SO MANY GOLD AUREI. Sacred or religious places, likewise public ones, such as a forum or a basilica, one who knowingly buys does so in vain; yet if, deceived by the seller, he has bought them as though private or profane, he will have an action ex empto, because it is not permitted for him to have them, in order that he may obtain what it is in his interest that he had not been deceived.
Locatio et conductio proxima est emptioni et venditioni iisdemque iuris regulis consistit. nam ut emptio et venditio ita contrahitur si de pretio convenerit, sic etiam locatio et conductio ita contrahi intellegitur si merces constituta sit. et competit locatori quidem locati actio, conductori vero conducti.
Letting and hiring is next to purchase and sale and consists in the same rules of law. For just as purchase and sale is contracted if agreement has been reached about the price, so too letting and hiring is understood to be contracted if the hire-payment (rent) has been fixed. And to the lessor there lies the action of letting (actio locati), while to the lessee there lies the action of hiring (actio conducti).
And what we said above, that if the price has been permitted to another’s arbitrament, let us understand that the same has been said also about letting and hiring, if the fee (merces) has been permitted to another’s arbitrament. For which cause, if someone has given garments to a fuller to be scoured or finished, or to a tailor to be mended, with no fee fixed at once, but afterwards to give only as much as shall have been agreed between them, it is not properly understood that letting and hiring is contracted, but under that head an action with prescribed words is given.
Praeterea sicut vulgo quaerebatur, an permutatis rebus emptio et venditio contrahitur: ita quaeri solebat de locatione et conductione, si forte rem aliquam tibi utendam sive fruendam quis dederit et invicem a te aliam utendam sive fruendam acceperit. et placuit, non esse locationem et conductionem, sed proprium genus esse contractus. veluti si, cum unum quis bovem haberet et vicinus eius unum, placuerit inter eos, ut per denos dies invicem boves commodarent, ut opus facerent, et apud alterum bos periit: neque locati vel conducti neque commodati competit actio, quia non fuit gratuitum commodatum, verum praescriptis verbis agendum est.
Moreover, just as it was commonly asked whether, when things are exchanged, sale and purchase are contracted, so it used to be asked about letting and hiring, if perchance someone gave you some thing to be used or enjoyed and in turn received from you another to be used or enjoyed. And it was decided that this is not letting and hiring, but is a proper (sui generis) kind of contract. For example, if, when a person had one ox and his neighbor one, it pleased them that for ten days apiece they should lend each other their oxen to do work, and the ox perished while with the other: neither the action of letting or hiring nor that of loan for use (commodatum) is available, because the loan was not gratuitous; rather, one must proceed by an action with prescribed words.
Adeo autem familiaritatem aliquam inter se habere videntur emptio et venditio, item locatio et conductio, ut in quibusdam causis quaeri soleat, utrum emptio et venditio contrahatur, an locatio et conductio. ut ecce de praediis quae perpetuo quibusdam fruenda traduntur, id est ut, quamdiu pensio sive reditus pro his domino praestetur, neque ipsi conductori neque heredi eius, cuive conductor heresve eius id praedium vendiderit aut donaverit aut dotis nomine dederit aliove quo modo alienaverit auferre liceat. sed talis contractus quia inter veteres dubitabatur et a quibusdam locatio, a quibusdam venditio existimabatur: lex Zenoniana lata est, quae emphyteuseos contractui propriam statuit naturam neque ad locationem neque ad venditionem inclinantem, sed suis pactionibus fulciendam, et si quidem aliquid pactum fuerit, hoc ita optinere ac si natura talis esset contractus, sin autem nihil de periculo rei fuerit pactum, tunc si quidem totius rei interitus accesserit, ad dominum super hoc redundare periculum, sin particularis, ad emphyteuticarium huiusmodi damnum venire.
Moreover, purchase and sale, and likewise letting and hiring, seem to have a certain familiarity between themselves, such that in certain cases it is accustomed to be asked whether a purchase and sale is contracted, or a letting and hiring. For example, concerning estates which are handed over to certain persons to be enjoyed in perpetuity, that is, so long as a pension or revenue is rendered to the owner for them, it is not permitted for the owner to take the estate away either from the lessee himself or from his heir, or from whomever the lessee or his heir shall have sold or given it, or given it by way of dowry, or alienated it in any other way. But since such a contract was a matter of doubt among the ancients, and by some was considered a lease, by others a sale, the Law of Zeno was passed, which established for the contract of emphyteusis its own proper nature, inclining neither to lease nor to sale, but to be supported by its own pactions; and if indeed something shall have been agreed, this is to prevail as if the nature of the contract were such; but if nothing shall have been agreed about the risk of the thing, then, if destruction of the whole thing should occur, the risk on this point is to fall back upon the owner; but if it be partial, damage of this kind is to come upon the emphyteuticary.
Item quaeritur, si cum aurifice Titio convenerit, ut is ex auro suo certi ponderis certaeque formae anulos ei faceret et acciperet verbi gratia aureos decem, utrum emptio et venditio contrahi videatur, an locatio et conductio? et Cassius ait, materiae quidem emptionem venditionemque contrahi, operae autem locationem et conductionem. sed placuit, tantum emptionem et venditionem contrahi.
Likewise it is asked, if it has been agreed with the goldsmith Titius that he, from his own gold, should make for him rings of a certain weight and of a certain form, and should receive, for example, ten aurei, whether a purchase and sale seems to be contracted, or a letting and hiring? And Cassius says that, as to the material, a purchase and sale is contracted, but as to the labor, a letting and hiring. But it has been decided that only a purchase and sale is contracted.
Conductor omnia secundum legem conductionis facere debet et, si quid in lege praetermissum fuerit, id ex bono et aequo debet praestare. qui pro usu aut vestimentorum aut argenti aut iumenti mercedem aut dedit aut promisit, ab eo custodia talis desideratur qualem diligentissimus paterfamilias suis rebus adhibet. quam si praestiterit et aliquo casu rem amiserit, de restituenda ea non tenebitur.
The lessee must do everything according to the law of the hiring, and, if anything has been omitted in the law, he must furnish it on the basis of what is good and equitable. He who, for the use either of clothing or of silverware or of a beast of burden, has either paid or promised a hire-fee, from him such custody is required as the most diligent paterfamilias applies to his own affairs. If he has provided that and by some chance has lost the thing, he will not be liable for restoring it.
appellant, aut unius alicuius negotiationis, veluti mancipiorum emendorum vendendorumque, aut olei, vini, frumenti emendi vendendique.
Et quidem si nihil de partibus lucri et damni nominatim convenerit, aequales scilicet partes et in lucro et in damno spectantur. quodsi expressae fuerint partes, hae servari debent: nec enim umquam dubium fuit, quin valeat conventio, si duo inter se pacti sunt ut ad unum quidem duae partes et damni et lucri pertineant, ad aliam tertia. De illa sane conventione quaesitum est, si Titius et Seius inter se pacti sunt, ut ad Titium lucri duae partes pertineant, damni tertia, ad Seium duae partes damni, lucri tertia, an rata debet haberi conventio?
And indeed, if nothing has been expressly agreed by name about the shares of profit and loss, equal shares, namely, are regarded both in profit and in loss. But if the shares have been expressed, these must be observed: for it has never been in doubt that the convention is valid, if two have pacted between themselves that to the one there pertain two parts both of loss and of profit, to the other the third. Concerning that convention, to be sure, the question has been raised: if Titius and Seius have pacted between themselves that to Titius there pertain two parts of profit, a third of loss; to Seius two parts of loss, a third of profit—ought the convention to be held ratified?
Quintus Mucius judged that such a pact was against the nature of partnership and for that reason ought not to be held valid. Servius Sulpicius, whose opinion prevailed, thinks the contrary, because the service of certain persons in a partnership is often so precious that it is just that they be admitted to the partnership on a better condition: for it is not doubted that a partnership can be entered into in such a way that one contributes money, the other does not contribute, and yet the profit is common between them, because the service of someone often counts in place of money. And so far has the view contrary to Quintus Mucius prevailed that it has also been established that it may be agreed that someone bear a share of profit and not be held liable for loss—which Servius also thought consistent with his position. Yet this must be understood thus: if in one matter profit has been brought and in another loss, after compensation has been made, only what remains is to be understood as profit.
Manet autem societas eo usque donec in eodem consensu perseveraverint: at cum aliquis renuntiaverit societati, solvitur societas. sed plane si quis callide in hoc renuntiaverit societati ut obveniens aliquod lucrum solus habeat, veluti si totorum bonorum socius, cum ab aliquo heres esset relictus, in hoc renuntiaverit societati ut hereditatem solus lucrifaceret, cogitur hoc lucrum communicare: si quid vero aliud lucri faceret quod non captaverit, ad ipsum solum pertinet: ei vero cui renuntiatum est, quidquid omnino post renuntiatam societatem adquiritur, soli conceditur. Solvitur adhuc societas etiam morte socii, quia qui societatem contrahit, certam personam sibi elegit.
The partnership remains, however, until they have persevered in the same consent: but when someone has renounced the partnership, the partnership is dissolved. But plainly, if someone has cunningly renounced the partnership for this purpose, that he alone may have some profit that comes along, for example, if a partner in all goods, when he had been left heir by someone, has renounced the partnership for this purpose, in order that he alone might make gain from the inheritance, he is compelled to share this profit: but if he should make any other profit which he has not contrived, it pertains to him alone: to the one, however, to whom renunciation has been made, whatever at all is acquired after the partnership has been renounced is conceded to him alone. The partnership is dissolved further also by the death of a partner, because he who contracts a partnership has chosen for himself a definite person.
but also, if by the consent of several a partnership has been formed, it is dissolved by the death of one partner even if more survive, unless it was agreed otherwise when the partnership was being entered. Likewise, if a partnership has been contracted for some particular thing and an end has been imposed upon the business, the partnership is finished. It is also manifest that the partnership is broken up by publicatio, namely if all the goods of a partner are “published” (i.e., confiscated by the state): for when another succeeds in his place, he is held as though dead.
Likewise, if any one of the partners, weighed down by the burden of debt, has ceded his goods, and for that reason his substance is put up for sale on account of public or private debts, the partnership is dissolved. But in this case, if they still consent to the partnership, a new partnership is deemed to begin.
Socius socio utrum eo nomine tantum teneatur pro socio actione si quid dolo commiserit, sicut is qui deponi apud se passus est, an etiam culpae, id est desidiae atque neglegentiae, nomine, quaesitum est: praevaluit tamen, etiam culpae nomine teneri eum. culpa autem non ad exactissimam diligentiam dirigenda est: sufficit enim talem diligentiam in communibus rebus adhibere socium, qualem suis rebus adhibere solet. nam qui parum diligentem socium sibi adsumit, de se queri, hoc est suae id imprudentiae imputare, debet.
It has been asked whether a partner is bound to a partner by the pro socio action only under that head if he has committed something by dolus (fraud), as is the one who has allowed a deposit to be placed with him, or also under the head of culpa, that is, sloth (desidia) and negligence: however, it has prevailed that he is held also under the head of culpa. But culpa is not to be gauged by the most exact diligence: for it suffices that a partner apply such diligence in common affairs as he is accustomed to apply in his own affairs. For he who takes to himself a not-very-diligent partner ought to complain of himself, that is, to impute this to his own imprudence.
Mandatum contrahitur quinque modis, sive sua tantum gratia aliquis tibi mandet, sive sua et tua, sive alienia tantum, sive sua et aliena, sive tua et aliena. at si tua tantum gratia tibi mandatum sit, supervacuum est mandatum et ob id nulla ex eo obligatio nec mandati inter vos actio nascitur. Mandantis tantum gratia intervenit mandatum, veluti si quis tibi mandet ut negotia eius gereres, vel ut fundum ei emeres, vel ut pro eo sponderes.
A mandate is contracted in five ways, whether someone instructs you for his own advantage only, or for his and yours, or for another’s only, or for his and another’s, or for yours and another’s. But if a mandate has been given to you for your advantage only, the mandate is superfluous, and on that account no obligation arises from it, nor does an action of mandate arise between you. A mandate intervenes for the mandator’s advantage only, for example if someone instructs you to manage his affairs, or to buy a farm for him, or to become surety for him.
Yours and the mandator’s, as for instance if he mandates to you that you lend money at interest to one who would borrow for his benefit; or if, you wishing to act against him on account of a suretyship, he mandates to you that you proceed against the principal defendant at the mandator’s risk; or that, at his risk, you stipulate from the person whom he delegates to you for that which he had owed to you. Another’s interest only intervenes in a mandate, as if he mandates to you that you manage the business of Titius, or that you buy an estate for Titius, or that you become surety for Titius. His own and another’s, as if he mandates to you about managing the common business of himself and Titius, or that you buy an estate for himself and Titius, or that you become surety for him and Titius.
Your and another’s, for example if he mandates to you that you should credit Titius on interest. But if it is that you should credit without interest, only another’s advantage intervenes in the mandate. Only your advantage intervenes in the mandate, for example if he mandates to you that you should place your monies rather in purchases of estates than lend at interest, or, conversely, that you should lend at interest rather than place them in purchases of estates.
A mandate of this kind is more counsel than mandate, and on that account is not obligatory, because no one is bound by counsel, even if it should not be expedient for the one to whom it is given, since it is free for each person to explore with himself whether the counsel is expedient. Therefore, if someone, you having idle money at home, has urged you to buy some thing or to extend credit (lend) to him, although it may not have been expedient for you to have bought or to have lent, nevertheless he is not held to you by the action of mandate. And so true are these things that the question was raised whether he is held on mandate who mandated to you that you should lend money at interest to Titius; but the opinion of Sabinus prevailed, that in this case the mandate is obligatory, because you would not otherwise have credited Titius than if it had been mandated to you.
Is qui exsequitur mandatum non debet excedere fines mandati. ut ecce si quis usque ad centum aureos mandaverit tibi, ut fundum emeres vel ut pro Titio sponderes, neque pluris emere debes neque in ampliorem pecuniam fideiubere; alioquin non habebis cum eo mandati actionem: adeo quidem, ut Sabino et Cassio placuerit, etiam si usque ad centum aureos cum eo agere velis, inutiliter te acturum. diversae scholae auctores recte te usque ad centum aureos acturum existimant: quae sententia sane benignior est.
He who executes a mandate ought not to exceed the limits of the mandate. For example, if someone has mandated you up to 100 aurei to buy an estate or to promise as sponsor for Titius, you ought neither to buy for more nor to pledge surety for a larger sum; otherwise you will not have against him an action on mandate: indeed, to such a degree that it pleased Sabinus and Cassius that even if you should wish to sue him up to 100 aurei, you would act ineffectually. The authors of the opposite school judge that you would act rightly up to 100 aurei; which opinion is certainly more benevolent.
Recte quoque mandatum contractum, si, dum adhuc integra res sit, revocatum fuerit, evanescit. Item si adhuc integro mandato mors alterutrius interveniat, id est vel eius qui mandaverit, vel eius qui mandatum susceperit, solvitur mandatum. sed utilitatis causa receptum est, si mortuo eo qui tibi mandaverit, tu ignorans eum decessisse exsecutus fueras mandatum, posse te agere mandati actione: alioquin iusta et probabilis ignorantia damnum tibi afferat.
Rightly also the contract of mandate, if, while the matter is still intact, it has been revoked, evaporates. Likewise, if, the mandate still intact, the death of either party intervenes, that is, either of him who has mandated or of him who has undertaken the mandate, the mandate is dissolved. But for the sake of utility it has been received that, if, after the death of him who mandated you, you, not knowing that he had deceased, had executed the mandate, you can sue by the action of mandate; otherwise a just and probable ignorance would bring loss upon you.
and similar to this is what has been decreed: if, after Titius’s dispensator has been manumitted, the debtors, through ignorance, have paid the freedman, they are released; whereas otherwise, by the strict reason of the law, they could not be released, because they would have paid another than the one to whom they ought to have paid.
Mandatum non suscipere liberum est: susceptum autem consummandum aut quam primum renuntiandum est, ut aut per semet ipsum aut per alium eandem rem mandator exsequatur. nam nisi ita renuntiatur ut integra causa mandatori reservetur eandem rem explicandi, nihilo minus mandati actio locum habet, nisi si iusta causa intercessit aut non renuntiandi aut intempestive renuntiandi.
Not to undertake a mandate is free: once undertaken, however, it must be consummated or renounced as soon as possible, so that the mandator may carry out the same matter either by himself or through another. For unless it is renounced in such a way that the situation is kept entire for the mandator for accomplishing the same matter, nonetheless the action of mandate lies, unless a just cause has intervened either for not renouncing or for renouncing untimely.
Mandatum et in diem differri et sub condicione fieri potest. In summa sciendum est, mandatum, nisi gratuitum sit, in aliam formam negotii cadere: nam mercede constituta, incipit locatio et conductio esse. et ut generaliter dixerimus: quibus casibus, sine mercede suscepto officio, mandati aut depositi contrahitur negotium, his casibus, interveniente mercede, locatio et conductio contrahi intellegitur.
A mandate can both be deferred to a fixed day and be made under a condition. In sum, it should be known that a mandate, unless it is gratuitous, falls into another form of business: for, once a fee is stipulated, it begins to be letting and hiring. And, to speak generally: in those cases in which, an undertaking having been assumed without a fee, the business of mandate or deposit is contracted, in those same cases, with a fee intervening, letting and hiring is understood to be contracted.
Igitur cum quis absentis negotia gesserit, ultro citroque inter eos nascuntur actiones, quae appellantur negotiorum gestorum: sed domino quidem rei gestae adversus eum qui gessit directa competit actio, negotiorum autem gestori contraria. quas ex nullo contractu proprie nasci manifestum est: quippe ita nascuntur istae actiones, si sine mandato quisque alienis negotiis gerendis se obtulerit: ex qua causa ii quorum negotia gesta fuerint etiam ignorantes obligantur. idque utilitatis causa receptum est, ne absentium qui subita festinatione coacti, nulli demandata negotiorum suorum administratione, peregre profecti essent, deserentur negotia: quae sane nemo curaturus esset, si de eo quod quis impendisset nullam habiturus esset actionem.
Accordingly, when someone has managed the affairs of an absent person, actions arise between them on both sides, which are called actions of negotiorum gestorum; but to the owner of the thing transacted there belongs a direct action against the one who managed, while to the manager of the affairs there is a counter-action. It is manifest that these arise properly from no contract: indeed, such actions arise if someone, without a mandate, has offered himself for the conducting of another’s affairs; from which cause those whose affairs have been managed are obligated even while unaware. And this has been received for the sake of utility, lest the affairs of absentees—who, compelled by sudden haste, had set out abroad with the administration of their affairs entrusted to no one—be deserted: which, to be sure, no one would take care of if he were going to have no action for what he had expended.
just as the one who has usefully managed the business has the master of the affairs obligated, so conversely this man too is bound to render an account of the administration. In which case one is compelled to render an account with the most exact diligence; nor is it sufficient to employ such diligence as he would be accustomed to apply to his own affairs, if indeed another, being more diligent, would have administered the business more commodiously.
Tutores quoque, qui tutelae iudicio tenentur, non proprie ex contractu obligati intelleguntur (nullum enim negotiam inter tutorem et pupillum contrahitur): sed quia sane non ex maleficio tenentur, quasi ex contractu teneri videntur. et hoc autem casu mutuae sunt actiones: non tantum enim pupillus cum tutore habet tutelae actionem, sed et ex contrario tutor cum pupillo habet contrariam tutelae, si vel impenderit aliquid in rem pupilli vel pro eo fuerit obligatus aut rem suam creditori eius obligaverit.
Tutors also, who are held by the guardianship action, are not properly understood to be obligated from contract (for no transaction is contracted between tutor and pupil): but because indeed they are not held from a malefice, they seem to be held as if from contract. And in this case too the actions are mutual: for not only does the pupil have the action of guardianship with the tutor, but conversely the tutor with the pupil has the contrary action of guardianship, if he has either expended something on the pupil’s affair, or has been obligated for him, or has pledged his own property to his creditor.
Item si inter aliquos communis sit res sine societate, veluti quod pariter eis legata donatave esset, et alter eorum alteri ideo teneatur communi dividundo iudicio, quod solus fructus ex ea re perceperit, aut quod socius eius in eam rem necessarias impensas fecerit: non intellegitur proprie ex contractu obligatus esse, quippe nihil inter se contraxerunt: sed quia non ex maleficio tenetur, quasi ex contractu teneri videtur. Idem iuris est de eo qui coheredi suo familiae erciscundae iudicio ex his causis obligatus est.
Likewise, if a thing be common between certain persons without partnership, as for instance because it had been bequeathed or donated to them together, and one of them be on that account held to the other by the communi dividundo action, because he alone has taken the fruits from that thing, or because his associate has made necessary expenses upon that matter: he is not understood to be properly bound ex contractu, since indeed they contracted nothing between themselves; but because he is not held ex maleficio, he is seen to be held quasi ex contractu. The same law holds concerning him who is bound to his coheir by the familiae erciscundae action for these causes.
Heres quoque legatorum nomine non proprie ex contractu obligatus intellegitur: neque enim cum herede neque cum defuncto ullum negotium legatarius gessisse proprie dici potest: sed quia ex maleficio non est obligatus heres, quasi ex contractu debere intellegitur.
The heir also, under the head of legacies, is not properly understood to be obligated from contract; for it can properly be said that the legatee has transacted no business either with the heir or with the deceased: but because the heir is not obligated from delict, he is understood to owe as if from contract.
Item is cui quis per errorem non debitum solvit quasi ex contractu debere videtur. adeo enim non intellegitur proprie ex contractu obligatus ut, si certiorem rationem sequamur, magis, ut supra diximus, ex distractu quam ex contractu possit dici obligatus esse: nam qui solvendi animo pecuniam dat, in hoc dare videtur, ut distrahat potius negotium quam contrahat. sed tamen proinde is qui accepit obligatur, ac si mutuum illi daretur, et ideo condictione tenetur.
Likewise, he to whom someone has paid what was not owed through error is seen as owing as if from a contract. For he is so little understood to be properly bound from a contract that, if we follow a more exact reasoning, he could rather, as we said above, be said to be bound from a “dis-tract” than from a contract: for he who gives money with the intention of paying seems to give it with this aim, to un-contract (dissolve) the business rather than to contract it. Yet nevertheless the one who received is obligated just as if a mutuum (a loan for consumption) had been given to him, and therefore he is liable under the condictio (an action for restitution).
Nevertheless, from certain causes what has been paid as not owed through error cannot be reclaimed. For the ancients defined that, from those causes in which by denial the suit grows, from those causes a payment not owed cannot be reclaimed—such as under the Lex Aquilia, and likewise from a legacy. Now the ancients indeed wished this to have place in those legacies which had been left as determinate sums fixed by damnation to whomever; but our constitution, since it has granted one nature to all legacies and fideicommissa, has wished this sort of augmentation to be extended to all legacies and fideicommissa: yet it has not afforded it to all legatees, but only in those legacies and fideicommissa which have been left to sacrosanct churches and to other venerable places which are honored with a view to religion or piety; which, if they are paid as not owed, are not recovered.
Eitis generibus obligationum quae ex contractu vel quasi ex contractu nascuntur, admonendi sumus, adquiri vobis non solum per vosmet ipsos, sed etiam per eas quoque personas quae in vestra potestate sunt, veluti per servos vestros et filios: ut tamen, quod per servos quidem vobis adquiritur, totum vestrum fiat, quod autem per liberos quos in potestate habetis ex obligatione fuerit adquisitum, hoc dividatur secundum imaginem rerum proprietatis et ususfructus, quam nostra discrevit constitutio: ut, quod ab actione commodum perveniat, huius usumfructum quidem habeat pater, proprietas autem filio servetur, scilicet patre actionem movente secundum novellae nostrae constitutionis divisionem. Item per liberos homines, et alienos servos quos bona fide possidetis, adquiritur vobis, sed tantum ex duabus causis, id est si quid ex operis suis vel ex re vestra adquirant. Per eum quoque servum in quo usumfructum vel usum habetis, similiter ex duabus istis causis vobis adquiritur.
From those kinds of obligations which arise from contract or quasi‑contract, we must note that acquisition is made for you not only through your own selves, but also through those persons who are in your power, as through your slaves and children; with the proviso, however, that what is acquired for you through slaves becomes wholly yours, whereas what has been acquired through children whom you have in power from an obligation is divided according to the pattern of ownership and usufruct, which our constitution has distinguished: so that whatever benefit comes from the action, the father indeed has the usufruct of it, but ownership is reserved to the son, namely with the father bringing the action according to the division of our novella constitution. Likewise, through free persons and through others’ slaves whom you possess in good faith, acquisition is made for you, but only from two causes, that is, if they acquire anything from their own work or from your property. Through that slave also in whom you have a usufruct or a use, similarly from these two causes it is acquired for you.
It is certain that a common slave acquires for his masters in proportion to their ownership share, except that, when by stipulating to one person expressly by name or by accepting through tradition (delivery), he acquires for that one alone—for example, when he stipulates thus: “Do you promise to give to Titius, my master?” But if the slave has stipulated by the order of one master, although previously it was a matter of doubt, yet after our decision the matter is settled, namely that he acquires only for the one who ordered him to do this, as said above.
Tollitur autem omnis obligatio solutione eius quod debetur, vel si quis, consentiente creditore, aliud pro alio solverit. nec tamen interest, quis solvat, utrum ipse qui debet, an alius pro eo: liberatur enim et alio solvente, sive sciente debitore sive ignorante vel invito solutio fiat. item si reus solverit, etiam ii qui pro eo intervenerunt liberantur.
Moreover, every obligation is extinguished by payment of what is owed, or if someone, with the creditor consenting, pays one thing in place of another. Nor, however, does it matter who pays, whether the very person who owes, or another on his behalf: for he is released even when another pays, whether the debtor knows or is ignorant, or the payment is made against his will. Likewise, if the principal party pays, those also who have intervened on his behalf are released.
Item per acceptilationem tollitur obligatio. est autem acceptilatio imaginaria solutio. quod enim ex verborum obligatione Titio debetur, id si velit Titius remittere, poterit sic fieri, ut patiatur haec verba debitorem dicere: QUOD EGO TIBI PROMISI, HABESNE ACCEPTUM?
Likewise an obligation is removed through acceptilation. Now acceptilation is an imaginary payment. For what is owed to Titius from a verbal obligation, if Titius wishes to remit it, it can be done thus, that he allows the debtor to say these words: WHAT I PROMISED TO YOU, DO YOU HOLD IT AS ACCEPTED?
et Titius respondeat HABEO; sed et Graece potest acceptum fieri, dummodo sic fiat ut Latinis verbis solet: 
quo genere, ut diximus, tantum eae obligationes solvuntur quae ex verbis consistunt, non etiam ceterae: consentaneum enim visum est, verbis factam obligationem posse aliis verbis dissolvi. sed id quod ex alia causa debetur potest in stipulationem deduci et per acceptilationem dissolvi. sicut autem quod debetur pro parte recte solvitur, ita in partem debiti acceptilatio fieri potest.
and let Titius answer I HAVE IT; but even in Greek the acceptance can be effected, provided it be done as it is customary with Latin words: by which kind, as we have said, only those obligations are dissolved which consist in words, not also the others: for it seemed consonant that an obligation made by words can be dissolved by other words. but that which is owed from another cause can be brought into a stipulation and dissolved by acceptilation. and just as what is owed is rightly paid in part, so an acceptilation can be made for a part of the debt.
A stipulation has been brought forth, which is commonly called the Aquilian, by which stipulation it comes about that the obligation of all things is brought into a stipulation and that is removed by acceptilation. For the Aquilian stipulation novates all obligations and was thus composed by Gaius Aquilius:
QUIDQUID TE MIHI EX QUACUMQUE CAUSA DARE FACERE OPORTET, OPORTEBIT OPORTERETVE, PRAESENS IN DIEMVE QUARUMQUE RERUM MIHI TECUM ACTIO QUAEQUE ABS TE PETITIO VEL ADVERSUS TE PERSECUTIO EST, ERIT, QUODQUE TU MEUM HABES, TENES, POSSIDES, POSSIDERESVE DOLOVE MALO FECISTI QUO MINUS POSSIDERES, QUANTI QUAEQUE EARUM RERUM RES ERIT, TANTAM PECUNIAM DARI STIPULATUS EST AULUS AGERIUS, SPOPONDIT NUMERIUS NEGIDIUS.
WHATEVER YOU MUST GIVE OR DO TO ME FROM WHATEVER CAUSE, OR WILL BE BOUND TO, OR WOULD BE BOUND TO, WHETHER AT PRESENT OR FOR A FUTURE DAY, IN RESPECT OF WHATEVER THINGS I HAVE WITH YOU AN ACTION, AND WHATEVER PETITION FROM YOU OR PROSECUTION AGAINST YOU IS OR WILL BE; AND WHAT OF MINE YOU HAVE, HOLD, POSSESS, OR WOULD BE POSSESSING, OR HAVE BY MALICIOUS FRAUD DONE THAT YOU NOT POSSESS; OF WHATEVER VALUE EACH OF THOSE THINGS SHALL BE, FOR SO MUCH MONEY TO BE GIVEN AULUS AGERIUS STIPULATED; NUMERIUS NEGIDIUS PROMISED.
Praeterea novatione tollitur obligatio. veluti si id quod tu Seio debeas, a Titio dari stipulatus sit. nam interventu novae personae nova nascitur obligatio et prima tollitur translata in posteriorem, adeo ut interdum, licet posterior stipulatio inutilis sit, tamen prima novationis iure tollatur: veluti si id quod Titio tu debebas a pupillo sine tutoris auctoritate stipulatus fuerit, quo casu res amittitur: nam et prior debitor liberatur et posterior obligatio nulla est.
Moreover, by novation an obligation is removed. For example, if he has stipulated that what you owe to Seius be given by Titius. For by the intervention of a new person a new obligation arises and the first is taken away, transferred into the later one, to such a degree that sometimes, even though the later stipulation is invalid, nevertheless the first is extinguished by right of novation: as when he has stipulated, from a pupillus without the authority of his tutor, for that which you owed to Titius, in which case the claim is lost; for both the prior debtor is freed and the later obligation is null.
it is not the same in law, if someone has stipulated from a slave: for then the prior debtor remains bound just as if thereafter no one had stipulated. but if it is the same person from whom you later stipulate, then and only then is a novation made, if there is something new in the later stipulation, for instance if a condition or a day (term) or a surety be added or removed. moreover, what we said—that if a condition is added a novation is made—must be understood thus, that we say a novation has been made if the condition has come to pass; otherwise, if it fails, the prior obligation endures.
Sed while this indeed was settled among the ancients—that a novation is effected when, with the intention of novating, one has passed into a second obligation—yet it was doubtful when this would seem to be done with the intention of novating, and some introduced certain presumptions about this in different cases: therefore our constitution issued, which most clearly defined that a novation takes place only when this very point has been expressed between the contracting parties, namely that they have agreed expressly for the novation of the prior obligation; otherwise both the original obligation remains and a second is added to it, so that an obligation subsists from both causes according to the definitions of our constitution, which one may more plainly ascertain from the reading of it itself.
Hoc amplius eae obligationes quae consensu contrahuntur contraria voluntate dissolvuntur. nam si Titius et Seius inter se consenserunt ut fundum Tusculanum emptum Seius haberet centum aureorum, deinde re nondum secuta, id est neque pretio soluto neque fundo tradito, placuerit inter eos ut discederetur ab emptione et venditione, invicem liberantur. idem est et in conductione et locatione et omnibus contractibus qui ex consensu descendunt, sicut iam dictum est.
Moreover, those obligations which are contracted by consent are dissolved by contrary will. For if Titius and Seius have agreed between themselves that Seius should have the Tusculan estate as bought for one hundred gold pieces, then, the matter not yet having followed— that is, with neither the price paid nor the estate delivered— if it has pleased them between themselves to depart from the purchase and sale, they are mutually released. The same holds in letting and hiring and in all contracts which descend from consent, as has already been said.