[ULPIANUS libro uicensimo quarto ad edictum. ] §11.6.1.prAduersus mensorem agrorum praetor in factum actionem proposuit.
[ULPIAN, from the twenty-fourth book on the Edict.] Against a land surveyor, the praetorian action on the facts has been introduced.
a quo falli nos non oportet: nam interest nostra, ne fallamur in modi renuntiatione, si forte uel de finibus contentio sit uel emptor scire uelit uel uenditor, cuius modi ager ueneat.
By whom we ought not to be deceived: for it is in our interest that we should not be deceived in the reporting of the measure, if perhaps there is a dispute about boundaries, or if the buyer or seller wishes to know of what measure the land is being sold.
ideo autem hanc actionem proposuit, quia non crediderunt ueteres inter talem personam locationem et conductionem esse, sed magis operam beneficii loco praeberi et id quod datur ei, ad remunerandum dari et inde honorarium appellari: si autem ex locato conducto fuerit actum, dicendum erit nec tenere intentionem.
Moreover, he introduced this action for this reason, because the ancients did not believe that there was a contract of letting and hiring between such a person, but rather that the service is provided as a benefit, and that what is given to him is given to reward him and is therefore called an honorarium: but if an action is brought on letting and hiring, it must be said that the intentio does not hold.
§11.6.1.1Haec actio dolum malum dumtaxat exigit: uisum est enim satis abundeque coerceri mensorem, si dolus malus solus conueniatur eius hominis, qui ciuiliter obligatus non est.
This action requires bad faith only; for it seemed that the surveyor is sufficiently and abundantly corrected, if only the bad faith of that man, who is not civilly bound, is brought to trial.
proinde si imperite uersatus est, sibi imputare debet qui eum adhibuit: sed et neglegenter aeque mensor securus erit: lata culpa plane dolo comparabitur.
Therefore, if he has acted unskillfully, he who employed him must blame himself; but also if he acted negligently, the surveyor will likewise be safe; gross negligence, obviously, will be equated with bad faith.
sed et si mercedem accepit, non omnem culpam eum praestare propter uerba edicti: utique enim scit praetor et mercede eos interuenire.
But even if he has received a fee, he is not to guarantee against every fault, because of the words of the edict; for the praetor certainly knows that they also intervene for a fee.
§11.6.1.2Is autem tenetur hac actione qui renuntiauit: sed renuntiasse et eum accipere debemus, qui per alium renuntiauit
Moreover, he is held by this action who has made the report; but we ought to understand that he also has made the report who reported through another.