[AFRICANUS libro octauo quaestionum. ] §19.1.30.prSeruus, quem de me cum peculio emisti, priusquam tibi traderetur, furtum mihi fecit.
[AFRICANUS, Questions, Book VIII.] A slave whom you bought from me with his peculium committed a theft against me before he was delivered to you.
quamuis ea res quam subripuit interierit, nihilo minus retentionem eo nomine ex peculio me habiturum ait, id est ipso iure ob id factum minutum esse peculium, eo scilicet, quod debitor meus ex causa condictionis sit factus.
Even though the thing he stole has perished, he [Julian] says that I will nonetheless have a retention on that account from the peculium; that is, the peculium is diminished by operation of law because of that act, namely, because he became my debtor by virtue of a condictio.
nam licet, si iam traditus furtum mihi fecisset, aut omnino condictionem eo nomine de peculio non haberem aut eatenus haberem, quatenus ex re furtiua auctum peculium fuisset, tamen in proposito et retentionem me habiturum et, si omne peculium penes te sit, uel quasi plus debito soluerim posse me condicere.
For although, if he had committed the theft against me after already being delivered, I would either have no condictio at all on that account against the peculium, or I would have it only to the extent that the peculium had been increased by the stolen property, yet in the case proposed I will not only have a retention, but also, if the entire peculium is in your possession, I can bring a condictio as if I had paid more than what was due.
secundum quae dicendum: si nummos, quos seruus iste mihi subripuerat, tu ignorans furtiuos esse quasi peculiares ademeris et consumpseris, condictio eo nomine mihi aduersus te competet, quasi res mea ad te sine causa peruenerit.
According to this, it must be said: if you, unaware that the money which that slave had stolen from me was stolen, took it as if it were part of his peculium and consumed it, a condictio on that account will lie for me against you, as if my property has come to you without cause.
§19.1.30.1Si sciens alienam rem ignoranti mihi uendideris, etiam priusquam euincatur utiliter me ex empto acturum putauit in id, quanti mea intersit meam esse factam: quamuis enim alioquin uerum sit uenditorem hactenus teneri, ut rem emptori habere liceat, non etiam ut eius faciat, quia tamen dolum malum abesse praestare debeat, teneri eum, qui sciens alienam, non suam ignoranti uendidit: id est maxime, si manumissuro uel pignori daturo uendiderit.
If you, knowing it to be the property of another, sold it to me who was ignorant of this, he [Julian] thought that even before eviction takes place, I can successfully bring an action on purchase for the amount of my interest in its becoming mine. For although otherwise it is true that a seller is bound only to the extent of allowing the buyer to hold the thing, and not also to make it his property, yet because he must guarantee the absence of fraud, a person who knowingly sold another’s property, and not his own, to one who was ignorant of this, is liable; that is, especially if he sold it to one who intended to manumit the slave or to pledge him.