[ULPIANUS libro uicensimo quinto ad edictum. ] §11.7.14.prEt si quis impediat eum qui emit, quo minus ei res tradantur, praetorem interuenire oportere tuerique huiusmodi factum si quid impediat quo minus ei res uenditae tradantur.
[ULPIANUS in the twenty-fifth book on the Edict.] And if anyone prevents the buyer from having the things delivered to him, the praetor ought to intervene and protect such a transaction, if anything prevents the sold things from being delivered to him.
§11.7.14.1Si colonus uel inquilinus sit is qui mortuus est nec sit unde funeretur, ex inuectis illatis eum funerandum Pomponius scribit et si quid superfluum remanserit, hoc pro debita pensione teneri.
If the person who died was a tenant farmer or a tenant of a house, and there is no source from which he may be buried, Pomponius writes that he should be buried from the effects brought in and carried in, and if any surplus remains, this is held for the rent due.
sed et si res legatae sint a testatore de cuius funere agitur nec sit unde funeretur, ad eas quoque manus mittere oportet: satius est enim de suo testatorem funerari, quam aliquos legata consequi.
But even if things have been bequeathed by the testator whose funeral is in question, and there is no source from which he may be buried, it is necessary to lay hands on these too; for it is better that the testator be buried from his own resources than that some people should obtain their legacies.
sed si adita fuerit postea hereditas, res emptori auferenda non est, quia bonae fidei possessor est et dominium habet, qui auctore iudice comparauit.
But if the inheritance is entered upon later, the thing is not to be taken away from the buyer, because he is a possessor in good faith and has ownership, having purchased with the authority of the judge.
legatarium tamen legato carere non oportet, si potest indemnis ab herede praestari: quod si non potest, melius est legatarium non lucrari, quam emptorem damno adfici.
However, the legatee ought not to go without his legacy if he can be kept harmless by the heir; but if he cannot, it is better for the legatee not to gain than for the buyer to suffer loss.
§11.7.14.2Si cui funeris sui curam testator mandauerit et ille accepta pecunia funus non duxerit, de dolo actionem in eum dandam Mela scripsit: credo tamen et extra ordinem eum a praetore compellendum funus ducere.
If a testator has entrusted the care of his funeral to someone, and that person, having received the money, did not conduct the funeral, Mela wrote that an action for fraud should be granted against him; I believe, however, that he should also be compelled by the praetor extraordinary to conduct the funeral.
§11.7.14.3Funeris causa sumptus factus uidetur is demum, qui ideo fuit ut funus ducatur, sine quo funus duci non possit, ut puta si quid impensum est in elationem mortui: sed et si quid in locum fuerit erogatum, in quem mortuus inferretur, funeris causa uideri impensum Labeo scribit, quia necessario locus paratur, in quo corpus conditur.
An expense is deemed to have been made for the sake of the funeral only if it was incurred for the purpose of conducting the funeral, without which the funeral could not be conducted, as, for example, if anything was spent on the removal of the dead body; but Labeo writes that if anything was spent on the place into which the dead body was to be brought, it is also deemed to have been spent for the sake of the funeral, because a place in which the body is deposited must of necessity be prepared.
§11.7.14.4Impensa peregre mortui quae facta est ut corpus perferretur, funeris est, licet nondum homo funeretur: idemque et si quid ad corpus custodiendum uel etiam commendandum factum sit, uel si quid in marmor uel uestem collocandam.
An expense made for someone who died abroad, in order that the body might be brought back, is a funeral expense, although the person is not yet buried; and the same applies if anything was done to guard or even preserve the body, or if anything was spent on procuring marble or clothing.
§11.7.14.5Non autem oportet ornamenta cum corporibus condi, nec quid aliud huiusmodi, quod homines simpliciores faciunt.
But ornaments ought not to be buried with bodies, nor anything else of this kind, which simpler people do.
§11.7.14.6Haec actio quae funeraria dicitur ex bono et aequo oritur: continet autem funeris causa tantum impensam, non etiam ceterorum sumptuum.
This action, which is called the funeral action, arises from the good and fair; but it comprises only the expense incurred for the sake of the funeral, not also other expenses.
aequum autem accipitur ex dignitate eius qui funeratus est, ex causa, ex tempore et ex bona fide, ut neque plus imputetur sumptus nomine quam factum est neque tantum quantum factum est, si immodice factum est: deberet enim haberi ratio facultatium eius, in quem factum est, et ipsius rei, quae ultra modum sine causa consumitur.
Moreover, what is fair is understood from the dignity of the person buried, from the cause, from the time, and from good faith, so that neither more is charged under the name of expense than was actually incurred, nor as much as was incurred, if it was incurred immoderately; for regard ought to be had to the resources of the person for whom it was incurred, and to the matter itself, which is consumed beyond measure without cause.
quid ergo si ex uoluntate testatoris impensum est? sciendum est nec uoluntatem sequendam, si res egrediatur iustam sumptus rationem, pro modo autem facultatium sumptum fieri.
What then if it was spent in accordance with the will of the testator? It must be known that even the will is not to be followed if the matter exceeds a reasonable limit of expense, but that the expense is to be made in proportion to the resources.
§11.7.14.7Sed interdum is, qui sumptum in funus fecit, sumptum non recipit, si pietatis gratia fecit, non hoc animo quasi recepturus sumptum quem fecit: et ita imperator noster rescripsit.
But sometimes he who made the expense for a funeral does not recover the expense, if he did it out of affection, not with the intention as if he were to recover the expense he made; and our emperor rescribed accordingly.
igitur aestimandum erit arbitro et perpendendum, quo animo sumptus factus sit, utrum negotium quis uel defuncti uel heredis gerit uel ipsius humanitatis, an uero misericordiae uel pietati tribuens uel affectioni.
Therefore, the arbiter must estimate and weigh with what intention the expense was made, whether a person was managing the business of the deceased or of the heir, or out of humanity itself, or indeed attributing it to mercy, affection, or love.
potest tamen distingui et misericordiae modus, ut in hoc fuerit misericors uel pius qui funerauit, ut eum sepeliret, ne insepultus iaceret, non etiam ut suo sumptu fecerit: quod si iudici liqueat, non debet eum qui conuenitur absoluere: quis enim sine pietatis intentione alienum cadauer funerat? oportebit igitur testari, quem quo animo funerat, ne postea patiatur quaestionem.
However, even the measure of mercy can be distinguished, so that he who buried was merciful or affectionate in this respect, namely to bury him lest he lie unburied, but not also to do so at his own expense; if this is clear to the judge, he ought not to acquit the person sued; for who buries another's corpse without some intention of affection? It will therefore be necessary to declare with what intention one buries, lest one afterwards suffer a dispute.