[AFRICANUS libro octauo quaestionum. ] §19.2.35.prEt haec distinctio conuenit illi, quae a Seruio introducta et ab omnibus fere probata est, ut, si auersione insulam locatam dominus reficiendo, ne ea conductor frui possit, effecerit, animaduertatur, necessario necne id opus demolitus est: quid enim interest, utrum locator insulae propter uetustatem cogatur eam reficere an locator fundi cogatur ferre iniuriam eius, quem prohibere non possit? intellegendum est autem nos hac distinctione uti de eo, qui et suum praedium fruendum locauerit et bona fide negotium contraxerit, non de eo, qui alienum praedium per fraudem locauerit nec resistere domino possit, quominus is colonum frui prohibeat.
[AFRICANUS, from the eighth book of Questions.] And this distinction agrees with that one which was introduced by Servius and approved by almost everyone, namely, that if the owner of an apartment building leased in block has, by rebuilding it, brought it about that the lessee cannot enjoy it, it should be considered whether or not he demolished that building of necessity: for what difference does it make whether the lessor of an apartment building is compelled to rebuild it because of its age, or the lessor of a field is compelled to endure the wrongdoing of someone whom he cannot prevent? But it must be understood that we use this distinction in the case of one who has leased his own estate for enjoyment and has contracted the business in good faith, and not of one who has leased another's estate through fraud and cannot resist the owner to prevent him from prohibiting the tenant from enjoying it.
§19.2.35.1Cum fundum communem habuimus et inter nos conuenit, ut alternis annis certo pretio eum conductum haberemus, tu, cum tuus annus exiturus esset, consulto fructum insequentis anni corrupisti.
When we had a common field and it was agreed between us that we should hold it on lease in alternate years at a fixed price, you, when your year was about to expire, intentionally ruined the crop of the following year.
agam tecum duabus actionibus, una ex conducto, altera ex locato: locati enim iudicio mea pars propria, conducti autem actione tua dumtaxat propria in iudicium uenient.
I will proceed against you with two actions, one on lease (ex conducto), the other on letting (ex locato): for in the action on letting my own share, and in the action on lease only your own share, will come into judgment.
deinde ita notat: nonne quod ad meam partem attinebit, communi diuidundo praestabitur a te mihi damnum? recte quidem notat, sed tamen etiam Serui sententiam ueram esse puto, cum eo scilicet, ut, cum alterutra actione rem seruauerim, altera perematur.
Then he notes as follows: "Will not the damage, as far as it relates to my share, be made good to me by you in an action for dividing common property (communi diuidundo)?" He indeed notes correctly, but nevertheless I think that Servius' opinion is also true, provided of course that, when I have secured the matter by either of the actions, the other is extinguished.
quod ipsum simplicius ita quaeremus, si proponatur inter duos, qui singulos proprios fundos haberent, conuenisse, ut alter alterius ita conductum haberent, ut fructus mercedis nomine pensaretur.
This very point we will examine more simply if it is proposed that between two persons, who each had their own individual fields, it was agreed that they should hold each other's field on lease in such a way that the crop should be offset in place of rent.