[IULIANUS libro quinquagesimo septimo digestorum. ] §21.2.39.prMinor uiginti quinque annis fundum uendidit Titio, eum Titius Seio: minor in ea uenditione circumscriptum dicit et inpetrat cognitionem non tantum aduersus Titium, sed etiam aduersus Seium: Seius postulabat apud praetorem utilem sibi de euictione stipulationem in Titium dari: ego dandam putabam.
[JULIANUS, Digests, Book Fifty-Seven] A minor under twenty-five years of age sold a tract of land to Titius, and Titius sold it to Seius. The minor asserted that he had been defrauded in that sale, and obtained a trial not only against Titius, but also against Seius. Seius requested before the praetor that a useful stipulation concerning eviction against Titius be granted to him; I thought that it should be granted.
respondi: iustam rem Seius postulabat, nam si ei fundus praetoria cognitione ablatus fuerit, aequum erit per eundem praetorem et euictionem restitui.
I answered: Seius was requesting a just thing, for if the land should be taken away from him by the praetorian trial, it will be equitable that the eviction also be restored through the same praetor.
§21.2.39.1Si seruus tuus emerit hominem et eun||dem uendiderit Titio eiusque nomine duplam promiserit et tu a uenditore serui stipulatus fueris: si Titius seruum petierit et ideo uictus sit, quod seruus tuus in tradendo sine uoluntate tua proprietatem hominis transferre non potuisset, supererit Publiciana actio et propter hoc duplae stipulatio ei non committetur: quare uenditor quoque tuus agentem te ex stipulatu poterit doli mali exceptione summouere.
If your slave bought a man and sold the same man to Titius, promising twofold value in his own name, and you had obtained a stipulation from the seller of the slave: if Titius should sue for the slave and be defeated on the ground that your slave, in delivering him, could not transfer the ownership of the man without your consent, the Publician action will still remain available, and for this reason the stipulation for twofold value will not be forfeited to him; wherefore your seller also will be able to defeat you, when you sue on the stipulation, by the defense of fraud.
alias autem si seruus hominem emerit et duplam stipuletur, deinde eum uendiderit et ab emptore euictus fuerit: domino quidem aduersus uenditorem in solidum competit actio, emptori uero aduersus dominum dumtaxat de peculio.
In another case, however, if a slave bought a man and stipulated for twofold value, and then sold him and he was evicted from the buyer: the master indeed has an action against the seller for the full amount, but the buyer has an action against the master only to the extent of the peculium.
denuntiare uero de euictione emptor seruo, non domino debet: ita enim euicto homine utiliter de peculio agere poterit: sin autem seruus decesserit, tunc domino denuntiandum est.
Moreover, the buyer must give notice of the eviction to the slave, not to the master; for only in this way, if the man is evicted, will he be able to sue effectively concerning the peculium; but if the slave has died, then notice must be given to the master.
§21.2.39.2Si a me bessem fundi emeris, a Titio trientem, deinde partem dimidiam fundi a te quis petierit: si quidem ex besse quem a me acceperas semis petitus fuerit, Titius non tenebitur, si uero triens quem Titius tibi tradiderat et sextans ex besse quem a me acceperas petitus fuerit, Titius quidem pro triente, ego pro sextante euictionem tibi praestabimus.
If you bought two-thirds of a tract of land from me, and one-third from Titius, and then someone sued you for one-half of the land: if indeed the one-half was claimed out of the two-thirds which you had received from me, Titius will not be liable; but if the one-third which Titius had delivered to you and one-sixth out of the two-thirds which you had received from me were claimed, Titius indeed will make good the eviction to you for one-third, and I for one-sixth.
§21.2.39.3Pater sciens filium suum quem in potestate habebat ignoranti emptori uendidit: quaesitum est, an euictionis nomine teneatur.
A father, knowing that he had his own son in his power, sold him to an ignorant buyer: it was asked whether he is liable under the name of eviction.
respondit: qui liberum hominem sciens uel ignorans tamquam seruum uendat, euictionis nomine tenetur: quare etiam pater, si filium suum tamquam seruum uendiderit, euictionis nomine obligatur.
He answered: whoever sells a free man, whether knowingly or unknowingly, as a slave, is liable under the name of eviction; wherefore even a father, if he has sold his own son as a slave, is bound under the name of eviction.
§21.2.39.4Qui statuliberum tradit, nisi dixerit eum statuliberum esse, euictionis nomine perpetuo obligatur.
He who delivers a statuliber, unless he has stated that he is a statuliber, is perpetually bound under the name of eviction.
§21.2.39.5Qui seruum uenditum tradit et dicit usum fructum in eo Seii esse, cum ad Sempronium pertineat, Sempronio usum fructum petente perinde tenetur, ac si in tradendo dixisset usus fructus nomine aduersus Seium non teneri.
He who delivers a sold slave and says that the usufruct in him belongs to Seius, whereas it belongs to Sempronius, is liable when Sempronius claims the usufruct, just as if in delivering him he had said that he would not be liable against Seius under the name of usufruct.
et si re uera Seii usus fructus fuerit, legatus autem ita, ut, cum ad Seium pertinere desisset, Sempronii esset, Sempronio usum fructum petente tenebitur, Seio agente recte defugiet.
And if the usufruct really belonged to Seius, but had been bequeathed in such a way that, when it ceased to belong to Seius, it should belong to Sempronius, he will be liable when Sempronius claims the usufruct, but when Seius sues he will rightly escape liability.