[POMPONIUS libro nono ad Sabinum. ] §21.2.16.prEuicta re uendita ex empto erit agendum de eo quod accessit, quemadmodum ea quae empto fundo nominatim accesserunt si euicta sint, simplum praestatur.
[POMPONIUS, Commentary on Sabinus, Book Nine.] When a sold property is evicted, an action must be brought under purchase (ex empto) for what has accrued to it, just as, if those things which were specifically added to a purchased land are evicted, the single value is paid.
§21.2.16.1Duplae stipulatio committi dicitur tunc, cum res restituta est petitori, uel damnatus est litis aestimatione, uel possessor ab emptore conuentus absolutus est.
A stipulation for double value is said to be forfeited then, when the property has been restored to the claimant, or the buyer has been condemned in the valuation of the suit, or a possessor sued by the buyer has been absolved.
§21.2.16.2Si seruus, cuius nomine duplam stipulati sumus, euictus fuerit a nobis: ob id quod fugitiuus uel sanus non fuerit an agere nihilo minus possimus, quaeritur.
If a slave, in respect of whom we have stipulated for double value, is evicted from us, it is asked whether we can nevertheless bring an action on the ground that he was a runaway or not healthy.
Proculus uidendum ait, ne hoc quoque intersit, utrum tum euictus sit cum meus factus non esset, an tum cum meus factus esset: in eo enim casu quo meus factus est statim mea interest, quanto ob id deterior est, et quam actionem semel ex stipulatu habere coepi, eam nec euictione nec morte nec manumissione nec fuga serui nec ulla simili causa amitti: at si in bonis meis factus non sit, nihil ob ea quod fugitiuus sit pauperior sim, utpote cum in bonis meis non sit.
Proculus says it must be considered whether this too makes a difference, namely, whether he was evicted at a time when he had not become mine, or when he had become mine: for in that case where he became mine, I immediately have an interest in how much less valuable he is because of it, and the action which I have once begun to have from the stipulation is not lost either by eviction, or by death, or by manumission, or by the flight of the slave, or by any other similar cause. But if he had not become part of my property, I would be no poorer by the fact that he is a runaway, seeing that he was not in my property.
quod si sanum esse, erronem non esse stipulatus essem, tantum mea interesse, quantum ad praesentem usum pertineret, tametsi in obscuro esset (utpote ignorantibus nobis, quamdiu eum habiturus essem et an futurum esset, ut eum quisquam aut a me aut ab eo cui uendidissem cuiue similiter promisisssem euinceret).
But if I had stipulated that he was healthy and not a wanderer, my interest would be only so much as pertained to his present use, even though this were in obscurity (since we do not know how long I was to keep him, and whether it would happen that someone would evict him either from me or from the person to whom I had sold him or to whom I had similarly promised him).
summam autem optionis suae hanc esse, ut tantum ex ea stipulatione consequatur, quanti mea intersit aut post sti||pulationem interfuerit eum seruum fugitiuum non esse.
But the sum of his opinion is this: that he should obtain from that stipulation only so much as it is to my interest, or has been since the stipulation, that the slave should not be a runaway.