[ULPIANUS libro trigesimo secundo ad edictum. ] §19.2.13.prItem quaeritur, si cisiarius, id est carucharius, dum ceteros transire contendit, cisium euertit et seruum quassauit uel occidit.
[ULPIAN, On the Edict, book 32] Likewise, it is asked if a gig-driver, that is, a carriage-driver, while striving to overtake others, overturned the gig and injured or killed a slave.
puto ex locato esse in eum actionem: temperare enim debuit: sed et utilis Aquiliae dabitur.
I think that there is an action on the lease against him; for he ought to have controlled himself; but also an analogous Aquilian action will be granted.
§19.2.13.1Si nauicularius onus Minturnas uehendum conduxerit et, cum flumen Minturnense nauis ea subire non posset, in aliam nauem merces transtulerit eaque nauis in ostio fluminis perierit, tenetur primus nauicularius? Labeo, si culpa caret, non teneri ait: ceterum si uel inuito domino fecit uel quo non debuit tempore aut si minus idoneae naui, tunc ex locato agendum.
If a shipowner contracted to transport a cargo to Minturnae, and when that ship could not go up the Minturnae river, he transferred the merchandise to another ship, and that ship perished in the mouth of the river, is the first shipowner liable? Labeo says that if he is free from fault, he is not liable; but if he did it either against the owner's will, or at an unsuitable time, or to a less fit ship, then an action must be brought on the lease.
§19.2.13.2Si magister nauis sine gubernatore in flumen nauem immiserit et tempestate orta temperare non potuerit et nauem perdiderit, uectores habebunt aduersus eum ex locato actionem.
If a shipmaster steered his ship into a river without a helmsman, and when a storm arose he could not control it and lost the ship, the passengers will have an action against him on the lease.
§19.2.13.3Si quis seruum docendum conduxerit eumque duxerit peregre et aut ab hostibus captus sit aut perierit, ex locato esse actionem placuit, si modo non sic conduxit, ut et peregre duceret.
If someone hired a slave to teach him and took him abroad, and the slave was either captured by enemies or perished, it is accepted that there is an action on the lease, provided only that he did not hire him on the terms that he might also take him abroad.
§19.2.13.4Item Iulianus libro octagensimo sexto digestorum scripsit, si sutor puero parum bene facienti forma calcei tam uehementer ceruicem percusserit, ut ei oculus effunderetur, ex locato esse actionem patri eius: quamuis enim magistris leuis castigatio concessa sit, tamen hunc modum non tenuisse: sed et de Aquilia supra diximus.
Likewise, Julian wrote in the eighty-sixth book of his Digests that if a shoemaker, because an apprentice boy was not doing well, struck his neck so violently with a shoe-last that his eye was knocked out, his father has an action on the lease; for although slight chastisement is permitted to teachers, yet this man exceeded the limit; but we have also spoken above of the Aquilian action.
iniuriarum autem actionem competere Iulianus negat, quia non iniuriae faciendae causa hoc fecerit, sed praecipiendi.
Julian, however, denies that an action for injuries lies, because he did this not with the intention of committing an injury, but of instructing.
§19.2.13.5Si gemma includenda aut insculpenda data sit eaque fracta sit, si quidem uitio materiae factum sit, non erit ex locato actio, si imperitia facientis, erit.
If a gem was delivered to be set or engraved, and it was broken: if indeed this happened through a defect in the material, there will be no action on the lease; if through the unskilfulness of the craftsman, there will be.
huic sententiae addendum est, nisi periculum quoque in se artifex receperat: tunc enim etsi uitio materiae id euenit, erit ex locato actio.
To this opinion it must be added: "unless the artisan had also taken the risk upon himself"; for then, even if it occurred through a defect in the material, there will be an action on the lease.
§19.2.13.6Si fullo uestimenta polienda acceperit eaque mures roserint, ex locato tenetur, quia debuit ab hac re cauere.
If a fuller received clothes to be cleaned and mice gnawed them, he is liable on the lease, because he ought to have guarded against this.
et si pallium fullo permutauerit et alii alterius dederit, ex locato actione tenebitur, etiamsi ignarus fecerit.
And if the fuller mixed up a cloak and gave another person's cloak to someone, he will be liable under the action on the lease, even if he did so in ignorance.
§19.2.13.7Exercitu ueniente migrauit conductor, dein de hospitio milites fenestras et cetera sustulerunt.
Upon the arrival of an army, the tenant moved out, and then soldiers carried away windows and other things from the lodging.
si domino non denuntiauit et migrauit, ex locato tenebitur: Labeo autem, si resistere potuit et non resistit, teneri ait, quae sententia uera est.
If he moved out without giving notice to the owner, he will be liable on the lease. Labeo, however, says that if he could have resisted and did not resist, he is liable, which opinion is correct.
sed et si denuntiare non potuit, non puto eum teneri.
But even if he could not give notice, I do not think he is liable.
§19.2.13.8Si quis mensuras conduxerit easque magistratus frangi iusserit, si quidem iniquae fuerunt, Sabinus distinguit, utrum scit conductor an non: si scit, esse ex locato actionem, si minus, non.
If someone hired measuring vessels and a magistrate ordered them to be broken: if indeed they were false, Sabinus distinguishes whether the tenant knew it or not; if he knew, there is an action on the lease, if not, there is not.
quod si aequae sunt, ita demum eum teneri, si culpa eius id fecit aedilis.
But if they were just, he is liable only if the aedile did this through his fault.
et ita Labeo et Mela scribunt.
And so Labeo and Mela write.
§19.2.13.9Duo rei locationis in solidum esse possunt.
Two parties to a lease can be liable solidarily for the whole.
§19.2.13.10Si lege operis locandi comprehensum esset, ut, si ad diem effectum non esset, relocare id liceret, non alias prior conductor ex locato tenebitur, quam si eadem lege relocatum esset: nec ante relocari id potest, quam dies efficiendi praeterisset.
If it had been included in the terms of letting out a work that, if it were not completed by the day, it would be lawful to re-let it, the first contractor will not be liable on the lease unless it was re-let on the same terms; nor can it be re-let before the day for completion has passed.
§19.2.13.11Qui impleto tempore conductionis remansit in conductione, non solum reconduxisse uidebitur, sed etiam pignora uidentur durare obligata.
He who, after the period of the lease has expired, remains in the lease, will not only be deemed to have renewed the lease, but also the pledges are deemed to remain bound.
sed hoc ita uerum est, si non alius pro eo in priore conductione res obligauerat: huius enim nouus consensus erit necessarius.
But this is true only if another person had not pledged things for him in the prior lease; for this person's new consent will be necessary.
eadem causa erit et si rei publicae praedia locata fuerint.
The same rule will apply if public estates have been leased.
quod autem diximus taciturnitate utriusque partis colonum reconduxisse uideri, ita accipiendum est, ut in ipso anno, quo tacuerunt, uideantur eandem locationem renouasse, non etiam in sequentibus annis, etsi lustrum forte ab initio fuerat conductioni praestitutum.
Furthermore, our statement that by the silence of both parties the tenant is deemed to have renewed the lease must be understood in this way: they are deemed to have renewed the same lease for that very year in which they were silent, and not also for subsequent years, even if a five-year period had perhaps been fixed for the lease from the beginning.
sed et si secundo quoque anno post finitum lustrum nihil fuerit contrarium actum, eandem uideri locationem in illo anno permansisse: hoc enim ipso, quo tacuerunt, consensisse uidentur.
But if in the second year also after the five-year period was finished nothing contrary was done, the same lease is deemed to have remained in force in that year; for by this very fact, that they were silent, they are deemed to have consented.
et hoc deinceps in unoquoque anno obseruandum est.
And this is to be observed successively in each subsequent year.
in urbanis autem praediis alio iure utimur, ut, prout quisque habitauerit, ita et obligetur, nisi in scriptis certum tempus conductioni comprehensum est.
But in the case of urban estates, we use a different rule, so that each person is bound according as he has inhabited, unless a definite period for the lease was included in writing.