[GAIUS libro singulari ad formulam hypothecariam. ] §20.6.7.prSi consensit uenditioni creditor, liberatur hypotheca: sed in his pupilli consensus non debet aliter ratus haberi, quam si praesente tutore auctore consenserit aut etiam ipse tutor, scilicet si commodum aliquid uel satis ei fieri ex eo iudex aestimauerit.
[GAIUS, in his single book on the Hypothecary Formula.] If the creditor has consented to the sale, the hypothec is released; but in these cases, the consent of a pupillus ought not to be held valid otherwise than if he has consented with his tutor present as authorizer, or even if the tutor himself has consented—provided, of course, that the judge estimates that some advantage or sufficient satisfaction accrues to him therefrom.
§20.6.7.1Uidebimus, si procurator omnium bonorum consensit uel seruus actor, cui et solui potest et in id praepositus est, an teneat consensus eorum.
We shall consider whether the consent of a procurator of all property, or of an actor slave who can both receive payment and has been appointed for that purpose, is binding.
et dicendum est non posse, nisi specialiter hoc eis mandatum est.
And it must be said that it cannot be, unless this has been specially mandated to them.
§20.6.7.2Sed si cum debitoris procuratore conuenit, ne sit res obligata, dicendum est id debitori per doli exceptionem prodesse: cum autem cum seruo eius conuenerit, per ipsam pacti exceptionem conuenti debet.
But if an agreement is made with the debtor's procurator that the property shall not be bound, it must be said that this benefits the debtor by means of the exception of fraud; whereas if the agreement is made with his slave, the debtor who is sued ought to be protected by the exception of the agreement itself.
§20.6.7.3Si conuenit de parte pro indiuiso alienanda, si certa res est quae uenit, potest dici de reliqua parte ab initio agi oportere nec obstat exceptio.
If an agreement is made concerning the alienation of an undivided share, and if it is a specific thing that is sold, it can be said that the action ought to be brought from the beginning for the remaining share, and the exception does not stand in the way.
§20.6.7.4Illud tenendum est, si quis communis rei partem pro indiuiso dederit hypothecae, diuisione facta cum socio non utique eam partem creditori obligatam esse, quae ei obtingit qui pignori dedit, sed utriusque pars pro indiuiso pro parte dimidia manebit obligata.
It must be held that if anyone has given an undivided share of a common property as a hypothec, once division has been made with the partner, it is not the case that only that part which falls to the lot of him who gave it in pledge is bound to the creditor, but the undivided share of both will remain bound for a half share.