[IDEM libro trigesimo secundo ad edictum. ] §19.5.20.prApud Labeonem quaeritur, si tibi equos uenales experiendos dedero, ut, si in triduo displicuissent, redderes, tuque desultor in his cucurreris et uiceris, deinde emere nolueris, an sit aduersus te ex uendito actio.
[THE SAME, in the thirty-second book on the Edict.] In Labeo the question is raised: if I have given you horses for sale to be tried, on the condition that you should return them if they displeased you within three days, and you, being a trick-rider, have ridden them in a race and won, and subsequently refused to buy them, whether there is an action on sale against you.
et puto uerius esse praescriptis uerbis agendum: nam inter nos hoc actum, ut experimentum gratuitum acciperes, non ut etiam certares.
And I think it is more correct that one must sue on prescribed words; for it was agreed between us that you should receive a free trial, not that you should also compete in a race.
§19.5.20.1Item apud Melam quaeritur, si mulas tibi dedero ut experiaris et, si placuissent, emeres, si displicuissent, ut in dies singulos aliquid praestares, deinde mulae a grassatoribus fuerint ablatae intra dies experimenti, quid esset praestandum, utrum pretium et merces an merces tantum.
Likewise in Mela the question is raised: if I have given you mules to try, so that if they pleased you, you would buy them, and if they displeased you, you would pay a certain amount for each day, and subsequently the mules were carried off by robbers within the days of trial, what should be paid, whether the price and the fee, or only the fee.
et ait Mela interesse, utrum emptio iam erat contracta an futura, ut, si facta, pretium petatur, si futura, merces petatur: sed non exprimit de actionibus.
And Mela says that it makes a difference whether the sale was already contracted or was future, so that if it was concluded, the price is claimed, and if future, the fee is claimed; but he does not express himself concerning the actions.
puto autem, si quidem perfecta fuit emptio, competere ex uendito actionem, si uero nondum perfecta esset, actionem talem qualem aduersus desultorem dari.
But I think that if indeed the sale was perfected, the action on sale is available, but if it was not yet perfected, such an action is given as against the trick-rider.
§19.5.20.2Si, cum emere argentum uelles, uascularius ad te detulerit et reliquerit et, cum displicuisset tibi, seruo tuo referendum dedisti et sine dolo malo et culpa tua perierit, uascularii esse detrimentum, quia eius quoque causa sit missum.
If, when you wished to buy silver plate, a silversmith brought it to you and left it, and when it displeased you, you gave it to your slave to be returned, and it perished without dolus malus and fault on your part, the loss is the silversmith's, because it was sent for his sake too.
certe culpam eorum, quibus custodiendum perferendumue dederis, praestare te oportere Labeo ait, et puto praescriptis uerbis actionem in hoc competere.
Certainly, Labeo says that you ought to answer for the fault of those to whom you gave it to be guarded or returned, and I think that in this case an action on prescribed words is available.