[MODESTINUS libro quinto responsorum. ] §19.1.39.prQuaero, si quis ita fundum uendiderit, ut id uenum datum esse uideatur, quod intra terminos ipse possedit, sciens tamen aliquam partem certam se non possidere non certiorauerit emptorem, an ex empto iudicio teneatur, cum haec generalis adiectio ad ea, quae specialiter nouit qui uendidit nec excepit, pertinere non debeat, ne alioquin emptor capiatur, qui fortasse, si hoc cognouisset, uel empturus non esset uel minoris empturus esset, si certioratus de loco certo fuisset: cum hoc et apud ueteres sit relatum in eius persona, qui sic exceperat: 'seruitutes si quae debentur, debebuntur': etenim iuris auctores responderunt, si certus uenditor quibusdam personis certas seruitutes debere non admonuisset emptorem, ex empto eum teneri debere, quando haec generalis exceptio non ad ea pertinere debeat, quae uenditor nouit quaeque specialiter excipere et potuit et debuit, sed ad ea, quae ignorauit et de quibus emptorem certiorem nequiuit.
[MODESTINUS, Opinions, Book V.] I ask: if someone has sold a tract of land in such a way that what he himself possessed within the boundaries seems to have been sold, but, knowing that he did not possess a certain specific part, did not inform the buyer, whether he is held liable under the action on purchase. For this general addition ought not to apply to those things which the seller specifically knew and did not except, lest otherwise the buyer be deceived, who perhaps, if he had known this, either would not have bought it or would have bought it for less, if he had been informed about the specific place. For this has also been reported among the ancient jurists in the case of a person who had made an exception as follows: "if any servitudes are owed, they shall be owed"; for the authorities of the law replied that if a seller who knew did not warn the buyer that he owed specific servitudes to specific persons, he must be held liable under the action on purchase, since this general exception ought not to apply to those things which the seller knew and both could and should have specifically excepted, but to those things which he was ignorant of and about which he was unable to inform the buyer.
Herennius Modestinus respondit, si quid circumueniendi emptoris causa uenditor in specie de qua quaeritur fecit, ex empto actione conueniri posse.
Herennius Modestinus replied that if the seller did anything for the purpose of circumventing the buyer in the case under consideration, he can be sued under the action on purchase.