[IDEM libro uicensimo sexto ad edictum. ] §12.6.26.12Libertus cum se putaret operas patrono debere, soluit: condicere eum non posse, quamuis putans se obligatum soluit, Iulianus libro decimo digestorum scripsit: natura enim operas patrono libertus debet.
[THE SAME, On the Edict, Book 26.] When a freedman, thinking that he owed services to his patron, performed them: Julian wrote in the tenth book of his Digests that he cannot bring an action for recovery, although he performed them thinking he was obligated; for a freedman owes services to his patron by nature.
sed et si non operae patrono sunt solutae, sed, cum officium ab eo desideraretur, cum patrono decidit pecunia et soluit, repetere non potest.
But even if services were not performed for the patron, but, when respect was expected of him, he settled with his patron for money and paid it, he cannot recover it.
sed si operas patrono exhibuit non officiales, sed fabriles, ueluti pictorias uel alias, dum putat se debere, uidendum an possit condicere.
But if he has performed for his patron services which are not respectful, but artisanal, such as painting or others, while thinking he owed them, it must be considered whether he can bring an action for recovery.
et Celsus libro sexto digestorum putat eam esse causam operarum, ut non sint eaedem neque eiusdem hominis neque eidem exhibentur: nam plerumque robur hominis, aetas temporis opportunitasque naturalis mutat causam operarum, et ideo nec uolens quis reddere potest.
And Celsus in the sixth book of his Digests thinks that the nature of services is such that they cannot be the same, nor of the same person, nor performed for the same person; for generally a person's strength, age, the passage of time, and natural opportunity change the nature of services, and therefore no one can return them even if he wishes to.
sed hae, inquit, operae recipiunt aestimationem: et interdum licet aliud praestemus, inquit, aliud condicimus: ut puta fundum indebitum dedi et fructus condico: uel hominem indebitum, et hunc sine fraude modico distraxisti, nempe hoc solum refundere debes, quod ex pretio habes: uel meis sumptibus pretiosiorem hominem feci, nonne aestimari haec debent? sic et in proposito, ait, posse condici, quanti operas essem conducturus.
But these services, he says, admit of valuation; and sometimes, he says, although we perform one thing, we recover another; as, for example, if I gave an estate which was not due, and I recover the fruits; or a slave which was not due, and you sold him without fraud for a moderate price, surely you only have to refund what you have from the price; or if I made the slave more valuable at my own expense, should not these things be valued? So also in the case proposed, he says, there can be recovered the amount for which I would have hired the services.
sed si delegatus sit a patrono officiales operas, apud Marcellum libro uicensimo digestorum quaeritur.
But if a freedman has been delegated by his patron to perform respectful services, the question is asked in Marcellus, in the twentieth book of his Digests.
et dicit Marcellus non teneri eum, nisi forte in artificio sint (hae enim iubente patrono et alii edendae sunt): sed si soluerit officiales delegatus, non potest condicere neque ei cui soluit creditori, cui alterius contemplatione solutum est quique suum recipit, neque patrono, quia natura ei debentur.
And Marcellus says that he is not bound, unless perhaps they consist in an art or trade (for these are to be rendered to another also at the command of the patron); but if the delegated freedman has performed respectful services, he cannot bring an action for recovery either against the creditor to whom he performed them, who was paid in consideration of another and who receives what is his own, or against the patron, because they are owed to him by nature.
§12.6.26.13Si decem aut Stichum stipulatus soluam quinque, quaeritur, an possim condicere: quaestio ex hoc descendit, an liberer in quinque: nam si liberor, cessat condictio, si non liberor, erit condictio.
If, having stipulated for ten or Stichus, I pay five, the question arises whether I can bring an action for recovery; the question arises from this, whether I am released to the extent of five; for if I am released, the action for recovery ceases, but if I am not released, there will be an action for recovery.
placuit autem, ut Celsus libro sexto et Marcellus libro uicensimo digestorum scripsit, non peremi partem dimidiam obligationis ideoque eum, qui quinque soluit, in pendenti habendum, an liberaretur, petique ab eo posse reliqua quinque aut Stichum et, si praestiterit residua quinque, uideri eum et priora debita soluisse, si autem Stichum praestitisset, quinque eum posse condicere quasi indebita.
But it has been held, as Celsus wrote in the sixth book and Marcellus in the twentieth book of his Digests, that a half part of the obligation is not extinguished, and therefore he who paid five is to be held in suspense as to whether he is released, and the remaining five or Stichus can be demanded from him; and if he performs the remaining five, he is deemed to have paid the former five also as due; but if he performs Stichus, he can recover the five as not due.
sic posterior solutio comprobabit, priora quinque utrum debita an indebita soluerentur.
Thus the subsequent payment will prove whether the former five were paid as due or as not due.
sed et si post soluta quinque et Stichus soluatur et malim ego habere quinque et Stichum reddere, an sim audiendus, quaerit Celsus.
But even if, after the five are paid, Stichus is also paid, and I should prefer to have the five and to return Stichus, whether I should be heard, Celsus asks.
et putat natam esse quinque condictionem, quamuis utroque simul soluto mihi retinendi quod uellem arbitrium daretur.
And he thinks that the action for recovery of the five has arisen, although if both had been paid at the same time, the choice of retaining which I wished would be given to me.
§12.6.26.14Idem ait et si duo heredes sint stipulatoris, non posse alteri quinque solutis alteri partem Stichi solui: idem et si duo sint promissoris heredes.
The same writer says that also if there are two heirs of the stipulator, when five has been paid to one, a part of Stichus cannot be paid to the other; and the same applies if there are two heirs of the promisor.
secundum quae liberatio non contingit, nisi aut utrique quina aut utrique partes Stichi fuerunt solutae.
According to this, release does not occur unless either five is paid to each or a part of Stichus is paid to each.