[ULPIANUS libro uicensimo nono ad edictum. ] §15.1.30.prQuaesitum est, an teneat actio de peculio, etiamsi nihil sit in peculio cum ageretur, si modo sit rei iudicatae tempore.
[ULPIANUS in the twenty-ninth book on the Edict.] The question was raised whether an action concerning the peculium lies, even if there is nothing in the peculium at the time the action is brought, provided that there is some at the time of judgment.
Proculus et Pegasus nihilo minus teneri aiunt: intenditur enim recte, etiamsi nihil sit in peculio.
Proculus and Pegasus say that liability is nevertheless incurred; for the claim is correctly made, even if there is nothing in the peculium.
idem et circa ad exhibendum et in rem actionem placuit, quae sententia et a nobis probanda est.
The same view has been approved regarding the action for production and the action in rem, and this opinion must also be approved by us.
§15.1.30.1Si cum ex parte herede domini uel patris agatur, dumtaxat de peculio condemnandum, quod apud eum heredem sit qui conuenitur: idem et in rem uerso pro parte, nisi si quid in ipsius heredis rem uertit: nec quasi unum ex sociis esse hunc heredem conueniendum, sed pro parte dumtaxat.
If an action is brought against a partial heir of a master or a father, condemnation must be made only to the extent of the peculium that is in the possession of the heir who is sued; the same applies proportionally in the action for what has been turned to profit, unless something has been turned to the profit of the heir himself; and this heir is not to be sued as if he were one of partners, but only for his share.
§15.1.30.2Sed si ipse seruus sit heres ex parte institutus, aeque cum eo agendum erit.
But if the slave himself is appointed as a partial heir, the action must be brought against him in the same way.
§15.1.30.3Sin uero filius sit quamuis ex parte institutus, nihilo minus in solidum actionem patietur.
But if it is a son, although appointed only as a partial heir, he will nevertheless face the action for the whole amount.
sed si uelit pro parte nomen coheredis redimere, audiendus est: quid enim si in rem patris uersum sit? cur non consequatur filius a coherede, quod in patris re est? idem et si peculium locuples sit.
But if he wishes to redeem the share of his co-heir, he must be heard; for what if it has been turned to the profit of the father's estate? Why should the son not obtain from his co-heir what is in the father's estate? The same applies if the peculium is wealthy.
§15.1.30.4Is, qui semel de peculio egit, rursus aucto peculio de residuo debiti agere potest.
A person who has once brought an action concerning the peculium can, if the peculium has subsequently increased, bring an action again for the remainder of the debt.
§15.1.30.5Si annua exceptione sit repulsus a uenditore creditor, subueniri ei aduersus emptorem debet: sed si alia exceptione, hactenus subueniri, ut deducta ea quantitate, quam a uenditore consequi potuisset, ab emptore residuum consequatur.
If a creditor has been barred by a seller through the one-year exception, relief ought to be granted to him against the buyer; but if by another exception, relief is granted only to the extent that, after deducting the amount he could have obtained from the seller, he may obtain the remainder from the buyer.
§15.1.30.6In dolo obiciendo temporis ratio habetur: fortassis enim post tempus de dolo actionis non patietur dolum malum obici praetor, quoniam nec de dolo actio post statutum tempus datur.
In raising an objection of fraud, account is taken of the time; for perhaps, after the time limit for an action for fraud has passed, the praetor will not allow the objection of bad faith to be raised, since an action for fraud is not granted after the established time.
§15.1.30.7In heredem autem doli clausula in id quod ad eum peruenit fieri debet, ultra non.
Against an heir, however, the fraud clause must be applied to the extent of what has come to his hands, and no further.