[SCAEUOLA libro quinto digestorum. ] §13.7.43.prLocum purum pignori creditori obligauit eique instrumentum emptionis tradidit: et cum eum locum inaedificare uellet, mota sibi controuersia a uicino de latitudine, quod alias probare non poterat, petit a creditore, ut instrumentum a se traditum auctoritatis exhiberet: quo non exhibente minorem locum aedificauit atque ita damnum passus est.
A man pledged an unencumbered plot of land to his creditor and delivered to him the deed of purchase. When he wished to build upon that plot, a dispute was raised against him by a neighbor concerning its width; since he could not prove this by any other means, he requested the creditor to produce the deed of title which he himself had delivered. Because the creditor did not produce it, he built on a smaller space and thus suffered a loss.
quaesitum est, an, si creditor pecuniam petat uel pignus uindicet, doli exceptione posita iudex huius damni rationem habere debeat.
The question was asked whether, if the creditor should sue for the money or claim the pledge, the judge, upon the pleading of the defense of fraud, ought to take this loss into account.
respondit, si operam non dedisset, ut instrumenti facultate subducta debitor caperetur, posse debitorem pecunia soluta pigneraticia agere: opera autem in eo data tunc et ante pecuniam solutam in id quod interest cum creditore agi.
He answered that if the creditor had not intentionally acted to disadvantage the debtor by depriving him of the availability of the deed, the debtor, after paying the money, could bring the action on pledge; but if there was intentional action in this matter, then, even before the money is paid, an action could be brought against the creditor for his interest (damages).
§13.7.43.1Titius cum pecuniam mutuam accepit a Gaio Seio sub pignore culleorum: istos culleos cum Seius in horreo haberet, missus ex officio annonae centurio culleos ad annonam sustulit ac postea instantia Gaii Seii creditoris reciperati sunt: quaero, intertrituram, quae ex operis facta est, utrum Titius debitor an Seius creditor adgnoscere debeat.
Titius received a loan of money from Gaius Seius under a pledge of leather sacks. While Seius had these sacks in his storehouse, a centurion dispatched from the office of the grain supply carried off the sacks for the grain supply, and afterwards they were recovered through the efforts of Gaius Seius, the creditor. I ask whether Titius the debtor or Seius the creditor ought to bear the wear and tear which was caused to them by their use.
respondit secundum ea quae proponerentur ob id, quod eo nomine intertrimenti accidisset, non teneri.
He answered that according to the facts proposed, the creditor was not liable for what had occurred by way of deterioration under that head.