[IDEM libro uicensimo nono ad edictum. ] §14.5.4.prSed si ex parte non modica sit heres scriptus filius, in arbitrio est creditoris, utrum pro portione hereditaria an in solidum eum conueniat.
[The same, On the Edict, Book 29] But if a son has been instituted heir for a substantial part, it is within the discretion of the creditor whether to sue him for his hereditary share or for the whole amount.
sed et hic iudex aestimare debeat, ne forte in id quod facere potest debeat conueniri.
But here too, the judge ought to consider whether he should not perhaps be sued only for what he is able to pay.
§14.5.4.1Interdum autem et si exheredatus filius uel emancipatus sit, in solidum actio aduersus eum dabitur, ut puta si patrem familias se mentitus est, cum contraheretur cum eo: nam libro secundo digestorum Marcellus scripsit, etiamsi facere non possit, conueniendum propter mendacium.
Sometimes, however, even if the son has been disinherited or emancipated, an action for the whole amount will be granted against him, as, for example, if he pretended to be a paterfamilias when the contract was made with him; for Marcellus wrote in the second book of his Digests that, even if he is unable to pay, he must be sued on account of his lie.
§14.5.4.2Quamquam autem ex contractu in id quod facere potest actio in eum datur, tamen ex delictis in solidum conuenietur.
Although, however, an action is granted against him on a contract for what he is able to pay, yet on account of delicts he will be sued for the whole amount.
§14.5.4.3Soli autem filio succurritur, non etiam heredi eius: nam et Papinianus libro nono quaestionum scribit in heredem filii in solidum dandam actionem.
Relief, however, is granted only to the son himself, not to his heir; for Papinian also writes in the ninth book of his Questions that an action for the whole amount must be granted against the heir of the son.
§14.5.4.4Sed an etiam temporis haberi debeat ratio, ut, si quidem ex continenti cum filio agatur, detur actio in id quod facere potest, sin uero post multos annos, non debeat indulgeri? et mihi uidetur rationem habendam esse: in hoc enim causae cognitio uertitur.
But should consideration also be given to time, so that, if indeed the son is sued immediately, an action is granted for what he is able to pay, but if after many years, this indulgence ought not to be allowed? And it seems to me that consideration must be given; for the judicial inquiry turns on this.
§14.5.4.5Is qui de peculio egit, cum posset quod iussu, in ea causa est, ne possit quod iussu postea agere, et ita Proculus existimat: sed si deceptus de peculio egit, putat Celsus succurrendum ei: quae sententia habet rationem.
He who has sued concerning the peculium, when he could have sued on the order, is in such a position that he cannot afterwards sue on the order, and Proculus is of this opinion. But if he sued concerning the peculium because he was deceived, Celsus thinks he should be granted relief; and this opinion is reasonable.