[PAULUS libro quinto quaestionum. ] §18.7.9.prTitius seruum uendidit ea lege, ut, si Romae moratus esset, manus inicere liceret: emptor alii eadem lege uendidit: seruus fugit a secundo emptore et Romae moratur: quaero, an sit manus iniectio et cui.
[PAULUS in the fifth book of Questions.] Titius sold a slave on the condition that, if he should tarry in Rome, it would be lawful to lay hands on him. The buyer sold him to another on the same condition. The slave fled from the second buyer and is tarrying in Rome. I ask whether there is a right to lay hands on him, and to whom.
respondi: in fugitiuo non est dubitandum nihil contra legem factum uideri, quia nec domino auferre se potest nec qui in fuga est ibi moratur.
I answered: in the case of a runaway slave, there is no doubt that nothing is deemed to have been done against the condition, because he cannot take himself away from his master, nor does one who is in flight tarry there.
quod si ex uoluntate secundi emptoris contra legem moratus sit, potior habendus est qui auctor fuit legis, et posterior magis admonendi emptoris et liberandi se eandem legem repetierit nec poterit aliquo modo auferre legem sui uenditoris cuius condicio exstitit: nam et si poenam promisisset, tenetur, licet ipse quoque stipulatus esset: sed in poena promissa duae actiones sunt, manus autem iniectio in seruum competit.
But if he tarried against the condition with the consent of the second buyer, the creator of the condition must be preferred; and the later seller repeated the same condition rather for the sake of warning his buyer and freeing himself, nor could he in any way take away the condition of his own seller, whose condition has been fulfilled. For even if he had promised a penalty, he is bound, although he himself had also stipulated for it; but in the case of a promised penalty, there are two actions, whereas the laying of hands is available against the slave.
quod si prior ita uendidit, ut prostituta libera esset, posterior, ut manus inicere liceret, potior est libertas quam manus iniectio.
But if the prior seller sold on the condition that if she were prostituted she should be free, and the subsequent seller on the condition that it should be lawful to lay hands on her, freedom is preferred to the laying of hands.
plane si prior lex manus habeat iniectionem, posterior libertatem, fauorabilius dicetur liberam fore, quoniam utraque condicio pro mancipio additur et sicut manus iniectio, ita libertas eximit eam iniuriam.
Clearly, if the prior condition has the laying of hands and the subsequent has freedom, it will be said more favorably that she will be free, since both conditions are added for the benefit of the slave, and just as the laying of hands, so freedom removes that wrong.