[IDEM libro uicensimo septimo quaestionum. ] §18.7.6.prSi uenditor ab emptore cauerit, ne serua manumitteretur neue prostituatur, et aliquo facto contra quam fuerat exceptum euincatur aut libera iudicetur, et ex stipulatu poena petatur, doli exceptionem quidam obstaturam putant, Sabinus non obstaturam.
[THE SAME in the twenty-seventh book of Questions.] If a seller has obtained a guarantee from a buyer that a female slave should not be manumitted or prostituted, and by some event contrary to what had been stipulated she is evicted or adjudged to be free, and the penalty is sought on the basis of the stipulation, some think that the plea of fraud will stand in the way, but Sabinus thinks it will not.
sed ratio faciet, ut iure non teneat stipulatio, si ne manumitteretur exceptum est: nam incredibile est de actu manumittentis ac non potius de effectu beneficii cogitatum.
But legal principle will dictate that the stipulation does not hold in law, if it was stipulated that she should not be manumitted: for it is incredible to suppose that the act of the manumitter was contemplated, and not rather the effect of the benefit.
ceterum si ne prostituatur exceptum est, nulla ratio occurrit, cur poena peti et exigi non debeat, cum et ancillam contumelia adfecerit et uenditoris affectionem, forte simul et uerecundiam laeserit: etenim alias remota quoque stipulatione placuit ex uendito esse actionem, si quid emptor contra quam lege uenditionis cautum est fecisset aut non fecisset.
But if it was stipulated that she should not be prostituted, no reason occurs why the penalty should not be sought and exacted, since the buyer has both subjected the female slave to insult and injured the seller's affection, and perhaps at the same time his sense of decency: indeed, in other situations, even in the absence of a stipulation, it is established that there is an action on the sale, if the buyer has done or failed to do anything contrary to what was provided for by the terms of the sale.
§18.7.6.1Nobis aliquando placebat non alias ex uendito propter poenam homini irrogatam agi posse, quam si pecuniae ratione uenditoris interesset, ueluti quod poenam promisisset: ceterum uiro bono non conuenire credere uenditoris interesse, quod animo saeuientis satisfactum non fuisset.
We once held that an action on the sale on account of the hardship imposed on the slave could not be brought, unless the seller had a pecuniary interest, for instance, if he had promised a penalty to another: besides, it did not seem to become a good man to believe that it was in the seller's interest that the desire of a cruel person had not been satisfied.
sed in contrarium me uocat Sabini sententia, qui utiliter agi ideo arbitratus est, quoniam hoc minoris homo uenisse uideatur.
But the opinion of Sabinus calls me to the opposite view; he thought that the action could be brought effectively for this reason, that on this account the slave seems to have been sold for less.