[IDEM libro quinto digestorum a Paulo epitomatorum. ] §19.2.31.prIn nauem Saufeii cum complures frumentum confuderant, Saufeius uni ex his frumentum reddiderat de communi et nauis perierat: quaesitum est, an ceteri pro sua parte frumenti cum nauta agere possunt oneris auersi actione.
[BY THE SAME AUTHOR, from the fifth book of the Digests epitomized by Paulus.] When several persons had poured their grain together into the ship of Saufeius, Saufeius had returned grain to one of them from the common mass, and the ship had perished. The question was asked whether the others could bring an action for cargo-conversion against the sailor for their share of the grain.
respondit rerum locatarum duo genera esse, ut aut idem redderetur (sicuti cum uestimenta fulloni curanda locarentur) aut eiusdem generis redderetur (ueluti cum argentum pusulatum fabro daretur, ut uasa fierent, aut aurum, ut anuli): ex superiore causa rem domini manere, ex posteriore in creditum iri.
He replied that there are two kinds of leased things: either the identical thing is to be returned (as when clothes are leased to a fuller to be cleaned), or a thing of the same kind is to be returned (as when unrefined silver is given to a smith for vessels to be made, or gold for rings). In the former case, the thing remains the property of the owner; in the latter, it becomes a matter of credit.
idem iuris esse in deposito: nam si quis pecuniam numeratam ita deposuisset, ut neque clusam neque obsignatam traderet, sed adnumeraret, nihil aliud eum debere apud quem deposita esset, nisi tantundem pecuniae solueret.
The same rule of law applies to deposit: for if anyone had deposited counted money in such a way that he did not deliver it closed up or sealed, but counted it out, the person with whom it was deposited would owe nothing else than to pay the same amount of money.
secundum quae uideri triticum factum Saufeii et recte datum.
According to this, the wheat seemed to have become the property of Saufeius and to have been rightly given.
quod si separatim tabulis aut heronibus aut in alia cupa clusum uniuscuiusque triticum fuisset, ita ut internosci posset quid cuiusque esset, non potuisse nos permutationem facere, sed tum posse eum cuius fuisset triticum quod nauta soluisset uindicare.
But if the wheat of each person had been kept separate by boards or baskets or in another vat, so that it could be distinguished whose wheat it was, we could not have made a substitution, but then the person whose wheat it had been which the sailor had delivered could bring a real action for it.
et ideo se improbare actiones oneris auersi: quia siue eius generis essent merces, quae nautae traderentur, ut continuo eius fierent et mercator in creditum iret, non uideretur onus esse auersum, quippe quod nautae fuisset: siue eadem res, quae tradita esset, reddi deberet, furti esse actionem locatori et ideo superuacuum esse iudicium oneris auersi.
And therefore he disapproves of the actions for cargo-conversion: because if the goods delivered to the sailor were of such a kind that they immediately became his and the merchant entered into credit, the cargo would not seem to have been converted, since indeed it had belonged to the sailor; or if the identical thing which had been delivered ought to be returned, the lessor has an action for theft, and therefore the judgment for cargo-conversion is superfluous.
sed si ita datum esset, ut in simili re solui possit, conductorem culpam dumtaxat debere (nam in re, quae utriusque causa contraheretur, culpam deberi) neque omnimodo culpam esse, quod uni reddidisset ex frumento, quoniam alicui primum reddere eum necesse fuisset, tametsi meliorem eius condicionem faceret quam ceterorum.
But if it had been given in such a way that it could be paid in a similar thing, the lessee owes only care against fault (for in a contract contracted for the benefit of both parties, liability is for fault), and it was not by any means a fault that he had returned to one from the grain, since it had been necessary for him to return to someone first, even though he made his condition better than that of the others.