[IDEM libro tertio epitomarum Alfeni digestorum. ] §17.2.71.prDuo societatem coierunt, ut grammaticam docerent et quod ex eo artificio quaestus fecissent, commune eorum esset: de ea re quae uoluerunt fieri in pacto conuento societatis proscripserunt, deinde inter se his uerbis stipulati sunt: 'haec, quae supra scripta sunt, ea ita dari fieri neque aduersus ea fieri? si ea ita data facta non erunt, tum uiginti milia dari?' quaesitum est, an, si quid contra factum esset, societatis actione agi posset.
[THE SAME, in the third book of the Epitomes of Alfenus' Digest.] Two persons formed a partnership to teach grammar, and that whatever profit they made from that trade should be common to them. Regarding this matter, they wrote down in the pact of the partnership what they wanted to be done, and then they stipulated between themselves in these words: "Shall these things, which are written above, be so given and done, and nothing be done contrary to them? If they are not so given and done, then shall twenty thousand be given?" The question was raised whether, if anything were done to the contrary, an action on the partnership could be brought.
respondit, si quidem pacto conuento inter eos de societate facto ita stipulati essent 'haec ita dari fieri spondes?', futurum fuisse, ut, si nouationis causa id fecissent, pro socio agi non possit, sed tota res in stipulationem translata uideretur.
He answered that, if indeed they had stipulated after making the agreement of partnership between them, "Do you promise that these things shall be so given and done?", the result would have been that, if they had done so for the sake of novation, they could not sue on the partnership, but the entire matter would be deemed to have been transferred to the stipulation.
sed quoniam non ita essent stipulati 'ea ita dari fieri spondes?' sed 'si ea ita facta non essent, decem dari?' non uideri sibi rem in stipulationem peruenisse, sed dumtaxat poenam (non enim utriusque rei promissorem obligari, ut ea daret faceret et, si non fecisset, poenam sufferret) et ideo societatis iudicio agi posse.
But since they had not stipulated, "Do you promise that these things shall be so given and done?", but "If these things should not be so done, shall ten thousand be given?", it did not seem to him that the matter itself had come into the stipulation, but only the penalty (for the promisor is not bound to both things, namely, to give and do those things and, if he did not do so, to suffer the penalty), and therefore an action could be brought under the partnership trial.
§17.2.71.1Duo colliberti societatem coierunt lucri quaestus compendii, postea unus ex his a patrono heres institutus est, alteri legatum datum est.
Two fellow freedmen entered into a partnership of gain, profit, and advantage; later, one of them was appointed heir by their patron, and a legacy was given to the other.
neutrum horum in medium referre debere respondit.
He answered that neither of these ought to be brought into the common fund.