[AFRICANUS libro octauo quaestionum. ] §17.1.34.prQui negotia Lucii Titii procurabat, is, cum a debitoribus eius pecuniam exegisset, epistulam ad eum emisit, qua significaret certam summam ex administratione apud se esse eamque creditam sibi se debiturum cum usuris semissibus: quaesitum est, an ex ea causa credita pecunia peti possit et an usurae peti possint.
[AFRICANUS, Questions, Book VIII.] A person who managed the affairs of Lucius Titius, having collected money from Titius's debtors, sent him a letter stating that a certain sum from his administration was in his possession, and that he would owe it as a loan to himself with interest at six per cent. The question arose whether an action for a loan could be brought on this ground and whether the interest could be claimed.
respondit non esse creditam: alioquin dicendum ex omni contractu nuda pactione pecuniam creditam fieri posse.
He answered that it was not a loan; otherwise, it would have to be said that a loan of money could be created from any contract by a mere agreement.
nec huic simile esse, quod, si pecuniam apud te depositam conuenerit ut creditam habeas, credita fiat, quia tunc nummi, qui mei erant, tui fiunt: item quod, si a debitore meo iussero te accipere pecuniam, credita fiat, id enim benigne receptum est.
Nor was this case similar to the one where, if it is agreed that you should hold money deposited with you as a loan, it becomes a loan, because in that case the coins, which were mine, become yours. Likewise, if I order you to receive money from my debtor, it becomes a loan, for this has been indulgently accepted.
his argumentum esse eum, qui, cum mutuam pecuniam dare uellet, argentum uendendum dedisset, nihilo magis pecuniam creditam recte petiturum: et tamen pecuniam ex argento redactam periculo eius fore, qui accepisset argentum.
A proof for these cases is that a person who, wishing to give a loan of money, had given silver to be sold, would be no more able to bring a proper action for a loan of money; and yet the money realized from the silver would be at the risk of the person who had received the silver.
et in proposito igitur dicendum actione mandati obligatum fore procuratorem, ut, quamuis ipsius periculo nummi fierent tamen usuras, de quibus conuenerit, praestare debeat.
Therefore, in the case proposed, it must be said that the manager will be bound by the action of mandate, so that, although the coins become at his own risk, he must nevertheless pay the interest that was agreed upon.
§17.1.34.1Cum heres ex parte esses, mandaui tibi, ut praedium hereditarium mihi emeres certo pretio: emisti.
When you were a co-heir to a certain share, I commissioned you to buy for me the hereditary estate at a certain price; you bought it.
pro coheredum quidem partibus non dubie mandati actio est inter nos.
For the shares of the co-heirs, there is undoubtedly an action of mandate between us.
pro tua autem parte posse dubitari ait, utrumne ex empto an mandati agi oporteat: neque enim sine ratione quem existimaturum pro hac parte sub condicione contractam emptionem.
But for your own share, he says it may be doubted whether the action should be brought on the purchase or on the mandate; for it is not without reason that someone might think that for this share a purchase was contracted under a condition.
quod quidem maxime quaeri pertinere ait, ut, si forte prius quam emptio fieret decesserim et tu, cum scires me decessisse, propter mandatum meum alii uendere nolueris, an heres meus eo nomine tibi sit obligatus, et retro, si alii uendideris, an heredi meo tenearis.
He says that this question is of the greatest practical importance in this respect: if perhaps I should die before the purchase is completed, and you, knowing of my death, refused to sell to another because of my mandate, whether my heir is bound to you on that account, and conversely, if you sell to another, whether you are liable to my heir.
nam si quidem sub condicione emptio facta uidetur, potest agi, quemadmodum si quaeuis alia condicio post mortem exstitisset: sin uero perinde mandati agendum sit, ac si alienum fundum emi mandassem, morte insecuta, cum id scieris, resoluto mandato nullam tibi actionem cum herede meo fore.
For if indeed the purchase is seen as made under a condition, an action can be brought just as if any other condition had been fulfilled after death; but if, on the other hand, the action must be brought on the mandate, just as if I had commissioned you to buy someone else's land, then since the mandate is dissolved by the subsequent death when you know of it, you will have no action against my heir.
sed et si mandati agendum esset, eadem praestanda, quae praestarentur, si ex empto ageretur.
But even if the action had to be brought on the mandate, the same things must be performed as would be performed if the action were brought on the purchase.