[AFRICANUS libro quarto quaestionum. ] §16.1.17.prUir uxori donationis causa rem uiliori pretio addixerat et in id pretium creditori suo delegauerat.
[AFRICANUS, Questions, book 4] A husband had assigned a thing to his wife at a very low price for the purpose of a donation, and had delegated her to his creditor for that price.
respondit uenditionem nullius momenti esse et, si creditor pecuniam a muliere peteret, exceptionem utilem fore, quamuis creditor existimauerit mulierem debitricem mariti fuisse: nec id contrarium uideri debere ei, quod placeat, si quando in hoc mulier mutuata est, ut marito crederet, non obstaturam exceptionem, si creditor ignorauerit in quam causam mulier mutuaretur, quoniam quidem plurimum intersit, utrum cum muliere quis ab initio contrahat an alienam obligationem in eam transferat: tunc enim diligentiorem esse debere.
He answered that the sale is of no validity, and, if the creditor should demand the money from the woman, an equitable exception will be available, even if the creditor believed that the woman had been the debtor of her husband; and this ought not to seem contrary to that which is accepted, namely, that if a woman at any time has borrowed in order to lend to her husband, the exception will not stand in the way if the creditor was ignorant of the purpose for which the woman was borrowing, since indeed it makes a very great difference whether one contracts with a woman from the beginning or transfers another's obligation to her; for in the latter case one ought to be more diligent.
§16.1.17.1Si mulier dixisset sibi rem dotis nomine obligatam et creditor curasset ei pecuniam dotis solui, qui idem pignus acciperet, mulieri etiam pecunia credita deberetur: si possessor creditor aduersus eam Seruiana agentem exciperet 'si non uoluntate eius pignus datum esset', replicationem mulieri senatus consulti non profuturam, nisi creditor scisset etiam aliam pecuniam ei deberi.
If a woman had said that a thing was pledged to her under the name of a dowry, and a creditor, who was to receive the same pledge, had arranged for the dowry money to be paid to her, while money lent was also owed to the woman; if the creditor in possession, against her bringing the Servian action, should plead the exception "if the pledge had not been given with her consent," the replication of the senatusconsultum will not benefit the woman, unless the creditor had known that the other money was also owed to her.
§16.1.17.2Mulier et Titius, cum in rem communem mutuarentur, eiusdem pecuniae rei facti sunt: non omnimodo mulierem pro parte socii uideri intercessisse dicebat.
A woman and Titius, when borrowing money for a common matter, became joint debtors for the same sum; he used to say that the woman is not in every case to be regarded as having interceded for the share of her partner.
nam si ob eam causam mutuati fuerint, ex qua, si creditor pecuniam non dedisset, maius damnum mulier passura fuerat, ueluti quod communis insula fulta non esset uel quod fundus communis in publicum committeretur, potius esse, ut senatus consulto locus non sit.
For if they borrowed for such a cause from which, if the creditor had not given the money, the woman would have suffered a greater loss, as for instance because a common apartment building was not shored up or because a common estate would be confiscated to the state, it is more fitting that there be no place for the senatusconsultum.
at si in aliquam emptionem mutua pecunia sit accepta, tunc pro parte intercessionem factam uideri et ideo creditorem partem dumtaxat pecuniae a muliere petere posse: quod si totum petierit, exceptione pro parte summouetur.
But if the borrowed money was accepted for some purchase, then she is regarded as having interceded for a part, and therefore the creditor can demand from the woman only a part of the money; but if he demands the whole, he is barred by the exception for that part.