[PAULUS libro tertio ad Plautium. ] §10.3.14.prIn hoc iudicium hoc uenit, quod communi nomine actum est aut agi debuit ab eo, qui scit se socium habere. §10.3.14.1Impendia autem, quae dum proprium meum fundum existimo feci, quae scilicet, si uindicaretur fundi pars, per exceptionem doli retinere possem, an etiam, si communi diuidundo iudicio mecum agetur, aequitate ipsius iudicii retinere possim, considerandum est.
[PAULUS, on Plautius, book III.] this action comes what was done on common account, or ought to have been done, by one who knows that he has a co-owner. as for the expenses which I incurred while I believed the land to be my own property—which, of course, if a part of the land were claimed from me, I could retain by the plea of fraud—it must be considered whether, if an action for partition of common property is brought against me, I can also retain them by the equity of this very action.
quod quidem magis puto, quia bonae fidei iudicium est communi diuidundo: sed hoc ita, si mecum agatur.
I am rather of the opinion that I can, because the action for partition of common property is an action of good faith; but this is only so if the action is brought against me.
ceterum si alienauero partem meam, non erit unde retinere possim.
On the other hand, if I alienate my share, there will be no basis on which I can make retention.
sed is, qui a me emerit, an retinere possit, uidendum est: nam et si uindicaretur ab eo pars, impendiorum nomine, quae ego fecissem, ita ut ego poterat retentionem facere: et uerius est, ut et in hac specie expensae retineantur.
But it must be seen whether he who has bought from me can make retention; for even if a part were claimed from him, he could make retention on account of the expenses which I had incurred, just as I could; and it is more correct that in this case too the expenses should be retained.
quae cum ita sint, rectissime dicitur etiam impendiorum nomine utile iudicium dari debere mihi in socium etiam manente rei communione.
This being so, it is most correctly said that even on account of expenses, an equitable action ought to be given to me against my co-owner, even while the co-ownership of the thing continues.
diuersum est enim, cum quasi in rem meam inpendo, quae sit aliena aut communis: hoc enim casu, ubi quasi in rem meam impendo, tantum retentionem habeo, quia neminem mihi obligare uolui.
For it is different when I incur expenses on what is foreign or common as if it were my own property; for in this case, where I incur expenses as if on my own property, I have only retention, because I did not intend to bind anyone to me.
at cum puto rem Titii esse, quae sit Maeuii, aut esse mihi communem cum alio quam est, id ago, ut alium mihi obligem, et sicut negotiorum gestorum actio datur aduersus eum cuius negotia curaui, cum putarem alterius ea esse, ita et in proposito.
But when I think that what is Maevius's belongs to Titius, or that it is common to me with someone other than the one it is, I act with the intention of binding another to me, and just as an action for unauthorized administration of affairs is given against him whose affairs I managed while believing them to be another's, so it is in the present case.
igitur et si abalienauero praedium, quia in ea causa fuit, ut mihi actio dari deberet, danda mihi erit, ut Iulianus quoque scribit, negotiorum gestorum actio. §10.3.14.2Si conueniat, ne omnino diuisio fiat, huiusmodi pactum nullas uires habere manifestissimum est.
Therefore, even if I alienate the estate, because it was in such a condition that an action ought to be given to me, an action for unauthorized administration of affairs must be given to me, as Julian also writes. it is agreed that no division at all shall be made, it is most obvious that an agreement of this kind has no force.
sin autem intra certum tempus, quod etiam ipsius rei qualitati prodest, ualet. §10.3.14.3Si inter socios conuenisset, ne intra certum tempus societas diuideretur, quin uendere liceat ei, qui tali conuentione tenetur, non est dubium: quare emptor quoque communi diuidundo agendo eadem exceptione summouebitur, qua auctor eius summouereretur. §10.3.14.4Si paciscatur socius, ne partem suam petat, effectu tollitur societas.
But if it is within a certain time, which is also beneficial to the quality of the thing itself, it is valid. it had been agreed between co-owners that the co-ownership should not be divided within a certain time, there is no doubt that he who is bound by such an agreement is permitted to sell; wherefore the buyer also, in bringing an action for partition of common property, will be barred by the same exception by which his transferor would be barred. a co-owner agrees not to claim his share, the co-ownership is in effect dissolved.