[ULPIANUS libro uicensimo octauo ad edictum. ] §13.6.3.prSed mihi uidetur, si locupletior pupillus factus sit, dandam utilem commodati actionem secundum diui Pii rescriptum.
[ULPIAN, from the twenty-eighth book on the Edict.] But it seems to me that if a ward has been made wealthier, an analogous action on loan should be granted in accordance with the rescript of the Divine Pius.
§13.6.3.1Si reddita quidem sit res commodata, sed deterior reddita, non uidetur reddita, quae deterior facta redditur, nisi quid interest praestetur: proprie enim dicitur res non reddita, quae deterior redditur.
If the thing loaned has indeed been returned, but returned in a worse condition, it is not considered to have been returned, when it is returned in a worse condition, unless the difference in interest is made good; for, strictly speaking, a thing is said not to have been returned when it is returned in a worse condition.
§13.6.3.2In hac actione sicut in ceteris bonae fidei iudiciis similiter in litem iurabitur: et rei iudicandae tempus, quanti res sit, obseruatur, quamuis in stricti litis contestatae tempus spectetur.
In this action, just as in other actions of good faith, an oath will likewise be taken regarding the value of the litigation; and the time of the judgment is observed for the value of the thing, although in a strict action the time of the joinder of issue is regarded.
§13.6.3.3Heres eius qui commodatum accepit pro ea parte qua heres est conuenitur, nisi forte habeat facultatem totius rei restituendae nec faciat: tunc enim condemnatur in solidum, quasi hoc boni iudicis arbitrio conueniat.
The heir of the person who received the loan is sued for that share in respect of which he is the heir, unless by chance he has the ability to restore the whole thing and does not do so; for then he is condemned for the whole amount, as if this were appropriate under the discretion of a good judge.
§13.6.3.4Si filio familias seruoue commodatum sit, dumtaxat de peculio agendum erit: cum filio autem familias ipso et directo quis poterit.
If a loan has been made to a son-in-power or a slave, the action must be brought only to the extent of his peculium; but one can bring an action directly against the son-in-power himself.
sed et si ancillae uel filiae familias commodauerit, dumtaxat de peculio erit agendum.
Also, if one has loaned to a female slave or a daughter-in-power, the action must be brought only to the extent of the peculium.
§13.6.3.5Sed non tantum ex causa doli earum personarum pater uel dominus condemnetur, sed et ipsius quoque domini uel patris fraus dumtaxat uenit, ut Iulianus libro undecimo circa pigneraticiam actionem distinguit.
But the father or master is not only condemned on account of the fraud of those persons, but the fraud of the master or father himself is also brought into account, as Julian distinguishes in his eleventh book concerning the action on pledge.
§13.6.3.6Non potest commodari id quod usu consumitur, nisi forte ad pompam uel ostentationem quis accipiat.
That which is consumed by use cannot be loaned, unless by chance someone receives it for show or display.