[AFRICANUS libro nono quaestionum. ] §12.6.38.prFrater a fratre, cum in eiusdem potestate essent, pecuniam mutuatus post mortem patris ei soluit: quaesitum est, an repetere possit.
A brother, when they were under the power of the same father, borrowed money from his brother, and paid it to him after their father's death; the question arose whether he could recover it.
respondit utique quidem pro ea parte, qua ipse patri heres exstitisset, repetiturum, pro ea uero, qua frater heres exstiterit, ita repetiturum, si non minus ex peculio suo ad fratrem peruenisset: naturalem enim obligationem quae fuisset hoc ipso sublatam uideri, quod peculii partem frater sit consecutus, adeo ut, si praelegatum filio eidemque debitori id fuisset, deductio huius debiti a fratre ex eo fieret.
He answered that he would certainly recover it in respect of that share in which he himself had become heir to his father; but in respect of that share in which his brother had become heir, he would recover it only if no less amount from his own peculium had come to his brother. For the natural obligation which had existed is deemed to have been extinguished by the very fact that the brother obtained a portion of the peculium, so much so that if that had been pre-legacy to the same son who was also the debtor, a deduction of this debt would be made from it by the brother.
idque maxime consequens esse ei sententiae, quam Iulianus probaret, si extraneo quid debuisset et ab eo post mortem patris exactum esset, tantum iudicio eum familiae herciscundae reciperaturum a coheredibus fuisse, quantum ab his creditor actione de peculio consequi potuisset.
And this is most consistent with the opinion which Julian approved: that if a son owed something to a stranger and it was exacted from him after the father's death, he would recover from his co-heirs in the action for partition of inheritance only as much as the creditor could have obtained from them by the action concerning the peculium.
igitur et si re integra familiae herciscundae agatur, ita peculium diuidi aequum esse, ut ad quantitatem eius indemnis a coherede praestetur: porro eum, quem aduersus extraneum defendi oportet, longe magis in eo, quod fratri debuisset, indemnem esse praestandum.
Therefore, even if the action for partition of inheritance is brought while things are intact, it is equitable that the peculium be so divided that he is kept harmless by his co-heir up to its amount. Furthermore, he who ought to be defended against a stranger ought much more to be kept harmless in respect of what he owed to his brother.
§12.6.38.1Quaesitum est, si pater filio crediderit isque emancipatus soluat, an repetere possit.
The question arose: if a father lent money to his son and the latter, having been emancipated, paid it, can he recover it?
respondit, si nihil ex peculio apud patrem remanserit, non repetiturum: nam manere naturalem obligationem argumento esse, quod extraneo agente intra annum de peculio deduceret pater, quod sibi filius debuisset.
He answered that if nothing from the peculium remained with the father, he would not recover it; for the subsistence of the natural obligation is evidenced by the fact that if a stranger brought an action concerning the peculium within a year, the father would deduct what the son owed him.
§12.6.38.2Contra si pater quod filio debuisset eidem emancipato soluerit, non repetet: nam hic quoque manere naturalem obligationem eodem argumento probatur, quod, si extraneus intra annum de peculio agat, etiam quod pater ei debuisset computetur.
Conversely, if a father paid what he owed to his son to the same son after his emancipation, he will not recover it; for here too, the subsistence of the natural obligation is proved by the same argument, namely, that if a stranger brings an action concerning the peculium within a year, what the father owed him is also taken into account.
eademque erunt et si extraneus heres exheredato filio soluerit id, quod ei pater debuisset.
And the same will apply if an outside heir pays to a disinherited son what the father owed him.
§12.6.38.3Legati satis accepi et cum fideiussor mihi soluisset, apparuit indebitum fuisse legatum: posse eum repetere existimauit.
I received security for a legacy, and when the surety had paid me, it appeared that the legacy had not been due. He was of the opinion that the surety could recover it.