[ULPIANUS libro quadragensimo nono ad Sabinum. ] §18.4.2.9Sicuti lucrum omne ad emptorem hereditatis respicit, ita damnum quoque debet ad eundem respicere.
[ULPIANUS, on Sabinus, book 49.] Just as all profit concerns the buyer of the inheritance, so also the loss must concern the same person.
§18.4.2.10Denique si rem hereditariam heres uendiderit ac per hoc fuerit condemnatus, non habet contra emptorem actionem, quia non ideo condemnatur quod heres esset, sed quod uendiderit.
Consequently, if the heir has sold a hereditary thing and on this account has been condemned, he has no action against the buyer, because he is condemned not because he was the heir, but because he sold it.
sed si pretium rei distractae emptori hereditatis dedit, uideamus, an locus sit ex uendito actioni: et putem esse.
But if he has given the price of the sold thing to the buyer of the inheritance, let us see whether there is room for an action on the sale; and I think there is.
§18.4.2.11Siue ipse uenditor dederit aliquid pro hereditate siue procurator eius siue alius quis pro eo, dum negotium eius gerit, locus erit ex uendito actioni, dummodo aliquid absit uenditori hereditatis: ceterum si nihil absit uenditori, consequens erit dicere non competere ei actionem.
Whether the seller himself paid something on behalf of the inheritance, or his agent, or someone else on his behalf while managing his affairs, there will be room for an action on the sale, provided that the seller of the inheritance is out of pocket; otherwise, if the seller is not out of pocket, it follows that we must say that no action is available to him.
§18.4.2.12Apud Iulianum scriptum est, si uenditor hereditatis exceperit seruum sine peculio et eius nomine cum eo fuerit actum de peculio et in rem uerso, id dumtaxat eum consequi, quod praestiterit eius peculii nomine quod emptorem sequi debeat, aut quod in rem defuncti uersum est: his enim casibus aes alienum emptoris soluit, ex ceteris causis suo nomine condemnetur.
It is written in Julian's works that if the seller of an inheritance has excepted a slave without his peculium, and an action has been brought against him on account of the slave regarding the peculium and what was turned to his advantage, he recovers only what he has paid under the head of that peculium which ought to follow the buyer, or what has been turned to the advantage of the deceased; for in these cases he has paid the debt of the buyer, whereas in other cases he would be condemned in his own name.
§18.4.2.13Quid ergo si seruum cum peculio exceperit uenditor hereditatis conuentusque de peculio praestitit? Marcellus libro sexto digestorum non repetere eum scribsit, si modo hoc actum est, ut, quod superfuisset ex peculio, hoc haberet: at si contra actum est, recte repetere eum posse ait: si uero nihil expressim inter eos conuenit, sed tantummodo peculii mentio facta est, cessare ex uendito actionem constat.
What if the seller of the inheritance excepted a slave with his peculium, and, being sued on account of the peculium, made a payment? Marcellus writes in the sixth book of his Digests that he cannot recover it, provided that the agreement was that he should have whatever remained of the peculium; but if the contrary was agreed, he says that he can rightly recover it; if, however, nothing was expressly agreed between them, but mention was merely made of the peculium, it is established that the action on the sale does not lie.
§18.4.2.14Si uenditor hereditatis aedes sibi exceperit, quarum nomine damni infecti promissum fuerat, interest quid acti sit: nam si ita excepit, ut damni quoque infecti stipulationis onus sustineret, nihil ab emptore consequeretur: si uero id actum erit, ut emptor hoc aes alienum exsolueret, ad illum onus stipulationis pertinebit: si non apparebit quid acti sit, uerisimile erit id actum, ut eius quidem damni nomine, quod ante uenditionem datum fuerit, onus ad emptorem, alterius temporis ad heredem pertineat.
If the seller of an inheritance has excepted for himself a house in respect of which a promise against impending damage had been made, it matters what was agreed; for if he excepted it on terms that he should also bear the burden of the stipulation for impending damage, he would recover nothing from the buyer; but if it was agreed that the buyer should discharge this debt, the burden of the stipulation will belong to him; if it does not appear what was agreed, it is likely that it was agreed that the burden in respect of damage caused before the sale should belong to the buyer, and for any other time to the heir.
§18.4.2.15Si Titius Maeui hereditatem Seio uendiderit et a Seio heres institutus eam hereditatem Attio uendiderit, an ex priore uenditione hereditatis cum Attio agi possit? et ait Iulianus: quod uenditor hereditatis petere a quolibet extraneo herede potuisset, id ab hereditatis emptore consequatur: et certe si Seio alius heres exstitisset, quidquid uenditor Maeuianae hereditatis nomine praestitisset, id ex uendito actione consequi ab eo potuisset: nam et si duplam hominis a Seio stipulatus fuissem et ei heres exstitissem eamque hereditatem Titio uendidissem, euicto homine rem a Titio seruarem.
If Titius has sold the inheritance of Maevius to Seius, and being instituted heir by Seius has sold that inheritance to Attius, can an action be brought against Attius on the basis of the former sale of the inheritance? Julian says: whatever the seller of the inheritance could have claimed from any outside heir, he recovers from the buyer of the inheritance; and certainly, if another person had stood as Seius's heir, whatever the seller had paid under the head of Maevius's inheritance could have been recovered from him by an action on the sale; for if I had also stipulated with Seius for double the value of a slave and had become his heir, and had sold that inheritance to Titius, if the slave were evicted I would preserve my interest against Titius.
§18.4.2.16Si quid publici uectigalis nomine praestiterit uenditor hereditatis, consequens erit dicere agnoscere emptorem et hoc debere: namque hereditaria onera etiam haec sunt.
If the seller of an inheritance has paid something under the head of a public tax, it follows that we must say that the buyer must acknowledge and pay this also; for these also are hereditary burdens.
et si forte tributorum nomine aliquid dependat, idem erit dicendum.
And if by chance he should pay something under the head of tribute, the same must be said.
§18.4.2.17Quod si funere facto heres uendidisset hereditatem, an impensam funeris ab emptore consequatur? et ait Labeo emptorem impensam funeris praestare debere, quia et ea, inquit, impensa hereditaria esset: cuius sententiam et Iauolenus putat ueram et ego arbitror.
But if the heir, after conducting the funeral, has sold the inheritance, does he recover the funeral expenses from the buyer? Labeo says that the buyer ought to pay the funeral expenses because, he says, that expense also is a hereditary expense; Javolenus thinks this opinion is true, and I am of the same mind.
§18.4.2.18Cum quis debitori suo heres exstitit, confusione creditor esse desinit: sed si uendidit hereditatem, aequissimum uidetur emptorem hereditatis uicem heredis optinere et idcirco teneri uenditori hereditatis, siue cum moritur testator debuit (quamuis post mortem debere desiit adita a uenditore hereditate) siue quid in diem debeatur siue sub condicione et postea condicio exstitisset, ita tamen, si eius debiti aduersus heredem actio esse poterat, ne forte etiam ex iis causis, ex quibus cum herede actio non est, cum emptore agatur.
When someone has stood as heir to his own debtor, he ceases to be a creditor by confusion; but if he has sold the inheritance, it seems most equitable that the buyer of the inheritance should take the place of the heir, and therefore be held liable to the seller of the inheritance, whether the testator owed the debt when he died (although after his death he ceased to owe it upon the acceptance of the inheritance by the seller), or whether something is owed to a certain day, or under a condition and the condition was subsequently fulfilled. This is so, however, only if an action for that debt could have existed against the heir, lest an action be brought against the buyer even for those causes from which there is no action against the heir.
§18.4.2.19Et si seruitutes amisit heres institutus adita hereditate, ex uendito poterit experiri aduersus emptorem, ut seruitutes ei restituantur.
And if the instituted heir has lost servitudes upon accepting the inheritance, he can proceed against the buyer on the sale, so that the servitudes may be restored to him.
§18.4.2.20Sed et si quid uenditor nondum praestiterit, sed quoquo nomine obligatus sit propter hereditatem, nihilo minus agere potest cum emptore.
But even if the seller has not yet paid anything, but is obligated under any head on account of the inheritance, he can nonetheless sue the buyer.