[PAULUS libro quarto epitomarum Alfeni digestorum. ] §18.1.40.prQui fundum uendebat, in lege ita dixerat, ut emptor in diebus triginta proximis fundum metiretur et de modo renuntiaret, et si ante eam diem non renuntiasset, ut uenditoris fides soluta esset: emptor intra diem mensurae quo minorem modum esse credidit renuntiauit et pecuniam pro eo accepit: postea eum fundum uendidit et cum ipse emptori suo admetiretur, multo minorem modum agri quam putauerat inuenit: quaerebat, an id quod minor is esset consequi a suo uenditore posset.
[PAULUS, in the fourth book of Epitomes of Alfenus's Digests.] A seller of a tract of land had stated in the terms of sale that the buyer should measure the land within the next thirty days and report concerning the acreage, and if he did not report before that day, the seller's liability should be released. The buyer, within the period for measurement, reported what he believed to be a smaller acreage and received money in return for it. Afterwards, he sold the land, and when he himself was measuring it for his own buyer, he found the acreage of the land to be much smaller than he had thought. He asked whether he could recover from his own seller that which was missing.
respondit interesse, quemadmodum lex diceretur: nam si ita dictum esset, ut emptor diebus triginta proximis fundum metiatur et domino renuntiet, quanto modus agri minor sit, quo post diem trigensimum renuntiasset, nihil ei profuturum: sed si ita pactum esset, ut emptor in diebus proximis fundum metiatur et de modo agri renuntiet, etsi in diebus triginta renuntiasset minorem modum agri esse, quamuis multis post annis posse eum quo minor is modus agri fuisset repetere.
He answered that it mattered how the clause was worded: for if it was stated that "the buyer shall measure the land within the next thirty days and report to the owner how much smaller the acreage of the land is," any report made after the thirtieth day would be of no benefit to him; but if the pact was that "the buyer shall measure the land within the next days and report concerning the acreage of the land," even if he had reported within the thirty days that the acreage of the land was smaller, he could seek to recover that by which the acreage of the land was smaller even many years later.
§18.1.40.1In lege fundi aquam accessuram dixit: quaerebatur, an etiam iter aquae accessisset.
In the terms of a tract of land, he said that water would go with it; it was asked whether the right of way for water also went with it.
respondit sibi uideri id actum esse, et ideo iter quoque uenditorem tradere oportere.
He answered that it seemed to him this was intended, and therefore the seller ought to deliver the right of way as well.
§18.1.40.2Qui agrum uendebat, dixit fundi iugera decem et octo esse, et quod eius admensum erit, ad singula iugera certum pretium stipulatus erat: uiginti inuenta sunt: pro uiginti deberi pecuniam respondit.
One who sold a tract of land said that there were eighteen iugera of land, and had stipulated for a certain price per iugera for whatever should be measured; twenty were found; he answered that the price for twenty was owed.
§18.1.40.3Fundi uenditor frumenta manu sata receperat: in eo fundo ex stipula seges erat enata: quaesitum est, an pacto contineretur.
The seller of a tract of land had reserved the grain sown by hand; on that land, a crop had grown from the stubble; it was asked whether this was included in the pact.
respondit maxime referre, quid est actum: ceterum secundum uerba non esse actum, quod ex stipula nasceretur, non magis quam si quid ex sacco saccarii cecidisset aut ex eo quod auibus ex aere cecidisset natum esset.
He answered that it mattered most what was intended; but according to the words, that which grew from the stubble was not intended, no more than if something had fallen from a porter's sack or had grown from what birds had dropped from the air.
§18.1.40.4Cum fundum quis uendiderat et omnem fructum receperat, et arundinem caeduam et siluam in fructu esse respondit.
When someone had sold a tract of land and reserved all the fruit, he answered that both reed-beds for cutting and timber were included in the fruit.
§18.1.40.5Dolia, quae in fundo domini essent, accessura dixit: etiam ea, quae seruus qui fundum coluerat emisset peculiaria, emptori cessura respondit.
He said that the jars which were on the land of the owner would go with it; he answered that even those which the slave who cultivated the land had bought with his peculium would pass to the buyer.
§18.1.40.6Rota quoque, per quam aqua traheretur, nihilo minus aedificii est quam situla.
A wheel, also, by which water is drawn, is no less a part of the building than a bucket.