[IDEM libro secundo disputationum. ] §12.4.5.prSi pecuniam ideo acceperis, ut Capuam eas, deinde parato tibi ad proficiscendum condicio temporis uel ualetudinis impedimento fuerit, quo minus proficiscereris, an condici possit, uidendum: et cum per te non steterit, potest dici repetitionem cessare: sed cum liceat paenitere ei qui dedit, procul dubio repetetur id quod datum est, nisi forte tua intersit non accepisse te ob hanc causam pecuniam.
[THE SAME, Second Book of Disputations.] If you have received money for the purpose of going to Capua, and then, when you were prepared to set out, the state of the weather or of your health prevented you from setting out, it must be considered whether a condictio can be brought. And since it was not through your fault that you did not go, it can be said that the action for recovery does not lie; but since he who gave the money has the right to change his mind, what was given will undoubtedly be recovered, unless by chance it is in your interest not to have received the money for this purpose.
nam si ita se res habeat, ut, licet nondum profectus sis, ita tamen rem composueris, ut necesse habeas proficisci, uel sumptus, qui necessarii fuerunt ad profectionem, iam fecisti, ut manifestum sit te plus forte quam accepisti erogasse, condictio cessabit: sed si minus erogatum sit, condictio locum habebit, ita tamen, ut indemnitas tibi praestetur eius quod expendisti.
For if the matter is such that, although you have not yet set out, you have nevertheless so arranged things that you are obliged to set out, or you have already incurred the expenses necessary for the journey, so that it is clear that you have spent perhaps more than you received, the condictio will not lie. But if less has been spent, the condictio will take place, provided, however, that indemnity is secured to you for what you have expended.
§12.4.5.1Si seruum quis tradiderit alicui ita, ut ab eo intra certum tempus manumitteretur, si paenituerit eum qui tradiderit et super hoc eum certiorauerit et fuerit manumissus post paenitentiam, attamen actio propter paenitentiam competit ei qui dedit.
If anyone has delivered a slave to another on the condition that he should be manumitted by him within a certain time, and if the transferor changes his mind and informs him of this, and the slave is manumitted after the change of mind, the giver nevertheless has an action on account of his change of mind.
plane si non manumiserit, constitutio succedit facitque eum liberum, si nondum paenituerat eum qui in hoc dedit.
Clearly, if the recipient does not manumit him, the imperial constitution steps in and makes him free, provided that the person who gave him for this purpose had not yet changed his mind.
§12.4.5.2Item si quis dederit Titio decem, ut seruum emat et manumittat, deinde paeniteat, si quidem nondum emptus est, paenitentia dabit condictionem, si hoc ei manifestum fecerit, ne si postea emat, damno adficietur: si uero iam sit emptus, paenitentia non facit iniuriam ei qui redemit, sed pro decem quae accepit ipsum seruum quem emit restituet aut, si ante decessisse proponatur, nihil praestabit, si modo per eum factum non est.
Likewise, if anyone has given ten to Titius so that he may buy and manumit a slave, and then changes his mind, if indeed the slave has not yet been bought, the change of mind will give rise to a condictio, provided he has made this clear to Titius, so that the latter will not suffer loss if he buys him afterwards. But if he has already been bought, the change of mind does not do injury to the purchaser, but instead of the ten which he received, he shall restore the slave himself whom he bought; or, if it is proposed that the slave died beforehand, he shall make no payment, provided it was not done by his act.
quod si fugit nec culpa eius contigit qui redemit, nihil praestabit: plane repromittere eum oportet, si in potestatem suam peruenerit, restitutum iri.
But if the slave runs away, and this does not happen through the fault of the purchaser, he shall make no payment; clearly, however, he must promise that if the slave comes into his power, he will be restored.
§12.4.5.3Sed si accepit pecuniam ut seruum manumittat isque fugerit prius quam manumittatur, uidendum, an condici possit quod accepit.
But if anyone has received money to manumit a slave, and the slave runs away before he is manumitted, it must be considered whether what was received can be recovered.
et si quidem distracturus erat hunc seruum et propter hoc non distraxit, quod acceperat ut manumittat non oportet ei condici: plane cauebit, ut, si in potestatem suam peruenerit seruus, restituat id quod accepit eo minus, quo uilior seruus factus est propter fugam.
And if indeed he was going to sell this slave, and for this reason did not sell him, what he received to manumit him ought not to be recovered from him; clearly, he shall give security that if the slave comes into his power, he will restore what he received, less the amount by which the slave has become of less value because of the flight.
plane si adhuc eum manumitti uelit is qui dedit, ille uero manumittere nolit propter fugam offensus, totum quod accepit restituere eum oportet.
Clearly, if the giver still wishes him to be manumitted, but the recipient refuses to manumit him because he is offended by the flight, he must restore all that he received.
sed si eligat is, qui decem dedit, ipsum seruum consequi, necesse est aut ipsum ei dari aut quod dedit restitui.
But if he who gave the ten chooses to obtain the slave himself, it is necessary either that the slave himself be given to him, or that what he gave be restored.
quod si distracturus non erat eum, oportet id quod accepit restitui, nisi forte diligentius eum habiturus esset, si non accepisset ut manumitteret: tunc enim non est aequum eum et seruo et toto pretio carere.
But if he was not going to sell him, what he received must be restored, unless by chance he would have kept him more diligently if he had not received the money to manumit him; for in that case, it is not equitable that he should lose both the slave and the whole price.
§12.4.5.4Sed ubi accepit, ut manumitteret, deinde seruus decessit, si quidem moram fecit manumissioni, consequens est, ut dicamus refundere eum quod accepit: quod si moram non fecit, sed cum profectus esset ad praesidem uel apud quem manumittere posset, seruus in itinere decesserit, uerius est, si quidem distracturus erat uel quo ipse usurus, oportere dici nihil eum refundere debere.
But where he received the money to manumit, and then the slave died, if indeed he was in delay in manumitting, it follows that we should say he must refund what he received. But if he was not in delay, but when he had set out to the governor or before whom he could manumit, the slave died on the journey, it is more correct to say that, if indeed he was going to sell him or use him himself, he ought to refund nothing.
enimuero si nihil eorum facturus, ipsi adhuc seruum obisse: decederet enim et si non accepisset ut manumitteret: nisi forte profectio manumissionis gratia morti causam praebuit, ut uel a latronibus sit interfectus, uel ruina in stabulo oppressus, uel uehiculo obtritus, uel alio quo modo, quo non periret, nisi manumissionis causa proficisceretur.
Indeed, if he was going to do neither of these things, the slave died to the loss of the recipient himself; for he would have died even if he had not received the money to manumit him, unless by chance the journey for the sake of manumission provided the cause of death, as if he were killed by robbers, or crushed by a collapse in a stable, or run over by a carriage, or in some other way in which he would not have perished if he had not set out for the purpose of manumission.