[ULPIANUS libro quadragensimo nono ad Sabinum. ] §18.4.2.prUenditor hereditatis satisdare de euictione non debet, cum id inter ementem et uendentem agatur, ut neque amplius neque minus iuris emptor habeat quam apud heredem futurum esset: plane de facto suo uenditor satisdare cogendus est.
[ULPIANUS, on Sabinus, book 49.] The seller of an inheritance is not obliged to provide security against eviction, since the understanding between the buyer and the seller is that the buyer should have neither more nor less right than what would have belonged to the heir. Clearly, however, the seller must be compelled to provide security regarding his own personal act.
§18.4.2.1In hereditate uendita utrum ea quantitas spectatur, quae fuit mortis tempore, an ea, quae fuit cum aditur hereditas, an ea quae fuit cum hereditas uenumdatur, uidendum erit.
In the sale of an inheritance, it must be considered whether we look at the quantity that existed at the time of death, or at the time the inheritance was entered upon, or at the time the inheritance was sold.
et uerius est hoc esse seruandum quod actum est: plerumque autem hoc agi uidetur, ut quod ex hereditate peruenit in id tempus quo uenditio fit, id uideatur uenisse.
And it is more correct that whatever was agreed upon should be observed; usually, however, it is deemed to be agreed that what has accrued from the inheritance up to the time the sale is made should be considered as sold.
§18.4.2.2Illud potest quaeri, si etiam impuberi sit substitutus is qui uendidit hereditatem testatoris, an etiam id, quod ex impuberis hereditate ad eum qui uendidit hereditatem peruenit, ex empto actioni locum faciat.
The question may be asked: if the person who sold the inheritance of a testator was also substituted to an impubes, does that which came to the seller from the inheritance of the impubes also give rise to an action on the purchase?
et magis est, ne ueniat, quia alia hereditas est: licet enim unum testamentum sit, alia tamen atque alia hereditas est.
It is more correct to say that it does not, because it is a different inheritance; for although there is only one testament, there are nevertheless different inheritances.
plane si hoc actum sit, dicendum erit etiam impuberis hereditatem in uenditionem uenire, maxime si iam delata impuberis hereditate uenierit hereditas.
Clearly, if this was agreed upon, it must be said that the inheritance of the impubes also comes into the sale, especially if the inheritance of the impubes was already devolved when the inheritance was sold.
§18.4.2.3Peruenisse ad uenditorem hereditatis quomodo uideatur, quaeritur.
It is asked how something is deemed to have accrued to the seller of an inheritance.
et ego puto, antequam quidem corpora rerum hereditariarum nactus uenditor fuerit, hactenus uideri ad eum peruenisse, quatenus mandare potest earum rerum persecutionem actionesque tribuere: enimuero ubi corpora nactus est uel debita exegit, plenius ad eum uideri peruenisse.
I think that, before the seller has obtained possession of the individual items of the inheritance, it is deemed to have accrued to him to the extent that he can mandate the recovery of those items and transfer the actions. On the other hand, when he has obtained possession of the items or collected the debts, it is deemed to have accrued to him more fully.
sed et si rerum uenditarum ante hereditatem uenditam pretia fuerit consecutus, palam est ad eum pretia rerum peruenisse.
But if he has already received the prices of things sold before the inheritance was sold, it is clear that the prices of those things have accrued to him.
illud tenendum est cum effectu uideri peruenisse, non prima ratione: idcirco quod legatorum nomine quis praestitit, non uidetur ad eum peruenisse: sed et si quid aeris alieni est uel cuius alterius oneris hereditarii, peruenisse merito negabitur.
We must hold that it is deemed to have accrued with actual effect, and not on a formal basis; therefore, what one has paid out under the head of legacies is not deemed to have accrued to him. Furthermore, if there is any debt or other hereditary burden, it will be rightly denied that this has accrued.
sed et rerum ante uenditionem donatarum pretia praestari aequitatis ratio exigit.
However, the rule of equity requires that the prices of things given as gifts before the sale must be made good.
§18.4.2.4Non tantum autem quod ad uenditorem hereditatis peruenit, sed et quod ad heredem eius ex hereditate peruenit, emptori restituendum est: et non solum quod iam peruenit, sed et quod quandoque peruenerit, restituendum est.
Furthermore, not only what has accrued to the seller of the inheritance, but also what has accrued to his heir from the inheritance, must be restored to the buyer; and not only what has already accrued, but also whatever shall at any time accrue, must be restored.
§18.4.2.5Sed et si quid dolo malo eorum factum est, quo minus ad eos perueniat, et hoc emptori praestandum est: fecisse autem dolo malo quo minus perueniat uidetur, siue alienauit aliquid, uel etiam accepto quem liberauit, uel id egit dolo malo, ne de hereditate acquireretur uel ne possessionem adipisceretur quam posset adipisci.
Also, if any act has been done by their fraud whereby less should accrue to them, this also must be made good to the buyer. Now, a person is deemed to have acted with fraud to prevent accrual, whether he has alienated something, or released someone by an acceptilatio, or acted with fraud so that something should not be acquired from the inheritance, or so that he should not obtain possession which he could have obtained.
sed et si non dolo malo, sed lata culpa admiserit aliquid, utique tenebitur: deperdita autem et deminuta sine dolo malo uenditoris non praestabuntur.
But even if he committed something not through fraud but through gross negligence, he will certainly be held liable; on the other hand, things lost or diminished without fraud on the part of the seller will not be made good.
§18.4.2.6Illud quaesitum est, an uenditor hereditatis ob debitum a filio suo qui in potestate eius esset seruoue ei, cuius hereditatem uendidisset, praestare debeat emptori.
The question was asked whether the seller of an inheritance ought to make good to the buyer what was owed by his son in his power, or by his slave, to the person whose inheritance he had sold.
et uisum est, quidquid dumtaxat de peculio filii seruiue aut in suam rem uersum inueniatur, praestare eum debere.
And it was held that he ought to make good only so much as is found to be in the peculium of the son or slave, or has been turned to his own advantage.
§18.4.2.7Solet quaeri, an et, si quid lucri occasione hereditatis uenditor senserit, emptori restituere id debeat.
It is usually asked whether the seller must also restore to the buyer any gain he has received on the occasion of the inheritance.
et est apud Iulianum haec quaestio tractata libro sexto digestorum et ait, quod non debitum exegerit, retinere heredem et quod non debitum soluerit, non reputare: nam hoc seruari, ut heres emptori non praestet quod non debitum exegerit, neque ab eo consequatur quod non debitum praestiterit.
This question is discussed by Julian in the sixth book of his Digests, and he says that if the heir has collected what was not due, he retains it, and if he has paid what was not due, he does not bring it into account; for this rule is observed: the heir does not make good to the buyer what he collected that was not due, nor does he recover from him what he paid that was not due.
si autem condemnatus praestiterit, hoc solum heredi sufficit esse eum condemnatum sine dolo malo suo, etiamsi maxime creditor non fuerit is cui condemnatus est heres: quae sententia mihi placet.
If, however, he has paid after being condemned, this alone is sufficient for the heir, that he was condemned without fraud on his part, even if the person to whom the heir was condemned was not actually a creditor; this opinion pleases me.
§18.4.2.8Non solum autem hereditarias actiones, sed etiam eas obligationes quas ipse heres constituit dicendum erit praestari emptori debere: itaque et si fideiussorem acceperit ab hereditario debitore, ipsam actionem quam habet heres praestare emptori debebit: sed et si nouauerit uel in iudicium deduxerit actionem, praestare debebit hanc ipsam actionem quam nactus est.
We must say that not only hereditary actions but also those obligations which the heir himself has contracted must be made good to the buyer. Therefore, even if he has accepted a surety from a hereditary debtor, he must make good to the buyer the action itself which the heir has; but even if he has novated the action or brought it to trial, he must make good this very action which he has acquired.