[PAULUS libro sexto decimo quaestionum. ] §18.4.21.prUenditor ex hereditate interposita stipulatione rem hereditariam persecutus alii uendidit: quaeritur, quid ex stipulatione praestare debeat. stare debeat: nam bis utique non committitur stipulatio, ut et rem et pretium debeat.
[PAULUS, Questions, book 16.] A seller of an inheritance, having pursued an inheritance property after a stipulation was interposed, sold it to another: it is asked what he ought to perform under the stipulation. [The agreement] must be stood by: for the stipulation is certainly not committed twice, so that he should owe both the thing and the price.
et quidem si, posteaquam rem uendidit heres, intercessit stipulatio, credimus pretium in stipulationem uenisse: quod si antecessit stipulatio, deinde rem nactus est, tunc rem debebit.
And indeed if, after the heir sold the thing, the stipulation intervened, we believe that the price came into the stipulation; but if the stipulation preceded, and then he obtained the thing, then he will owe the thing.
si ergo hominem uendiderit et is decesserit, an pretium eiusdem debeat? non enim deberet Stichi promissor, si eum uendidisset, mortuo eo, si nulla mora processisset.
If, therefore, he sold a slave and the slave died, does he owe the price of the same? For the promisor of Stichus, if he had sold him, would not be liable upon his death, if no default had occurred.
sed ubi hereditatem uendidi et postea rem ex ea uendidi, potest uideri, ut negotium eius agam quam hereditatis.
But when I have sold an inheritance and afterwards sold a thing from it, it can seem that I manage the business of that [purchaser] of the inheritance.
sed hoc in re singulari non potest credi: nam si eundem hominem tibi uendidero et necdum tradito eo alii quoque uendidero pretiumque accepero, mortuo eo uideamus ne nihil tibi debeam ex empto, quoniam moram in tradendo non feci (pretium enim hominis uenditi non ex re, sed propter negotiationem percipitur) et sic sit, quasi alii non uendidissem: tibi enim rem debebam, non actionem.
But this cannot be believed in the case of an individual thing: for if I sell the same slave to you and, before he is delivered, I also sell him to another and receive the price, let us see whether, upon his death, I owe you nothing under the purchase, since I did not make default in delivery (for the price of the sold slave is received not from the thing, but on account of the transaction) and thus it is as if I had not sold him to another: for I owed you the thing, not an action.
at cum hereditas uenit, tacite hoc agi uidetur, ut, si quid tamquam heres feci, id praestem emptori, quasi illius negotium agam: quemadmodum fundi uenditor fructus praestet bonae fidei ratione, quamuis, si neglexisset ut alienum, nihil ei imputare possit, nisi si culpa eius argueretur.
But when an inheritance is sold, it seems to be tacitly agreed that, if I have done anything as heir, I should perform it to the buyer, as if I were managing his business: just as the seller of a tract of land performs the fruits by reason of good faith, although, if he had neglected them as belonging to another, nothing could be imputed to him, unless his fault were proved.
quid si rem quam uendidi alio possidente petii et litis aestimationem accepi, utrum pretium illi debeo an rem? utique rem, non enim actiones ei, sed rem praestare debeo: et si ui deiectus uel propter furti actionem duplum abstulero, nihil hoc ad emptorem pertinebit.
What if I, while another was possessing, sought the thing I sold and received the litigation estimation, do I owe him the price or the thing? Surely the thing, for I ought to perform for him not actions, but the thing: and if, being ejected by force, or on account of an action for theft, I carry off double, this will not concern the buyer at all.
nam si sine culpa desiit detinere uenditor, actiones suas praestare debebit, non rem, et sic aestimationem quoque: nam et aream tradere debet exusto aedificio.
For if the seller ceased to hold possession without fault, he will be bound to perform his actions, not the thing, and thus also the estimation: for he must also deliver the site when a building is burned down.