[AFRICANUS libro sexto quaestionum. ] §21.2.46.prFundum, cuius usus fructus Attii erat, mihi uendidisti nec dixisti usum fructum Attii esse: hunc ego Maeuio detracto usu fructu tradidi.
[AFRICANUS, Book VI of Questions.] You sold me a tract of land, the usufruct of which belonged to Attius, and you did not say that the usufruct belonged to Attius; I delivered this land to Maevius with the usufruct deducted.
Attio capite minuto non ad me, sed ad proprietatem usum fructum redire ait, neque enim potuisse constitui usum fructum eo tempore, quo alienatus esset: sed posse me uenditorem te de euictione conuenire, quia aequum sit eandem causam meam esse, quae futura esset, si tunc usus fructus alienus non fuisset.
He says that upon Attius undergoing a loss of status, the usufruct returns not to me, but to the ownership, for indeed a usufruct could not have been established at the time when the land was alienated; but that I can sue you, the seller, on account of eviction, because it is equitable that my position should be the same as it would have been if at that time the usufruct had not belonged to another.
§21.2.46.1Si per alienum fundum mihi uiam constitueris, euictionis nomine te obligari ait: etenim quo casu, si per proprium constituentis fundum concessa esset uia, recte constitueretur, eo casu, si per alienum concederetur, euictionis obligationem contrahit.
If you establish a right of way for me through another's land, he says that you are liable on account of eviction; for in whatever case a right of way would have been validly established if it had been granted through the granter's own land, in that same case, if it is granted through another's land, it creates an obligation on account of eviction.
§21.2.46.2Cum tibi Stichum uenderem, dixi eum statuliberum esse sub hac condicione manumissum si nauis ex Asia uenerit', is autem 'si Titius consul factus fuerit' manumissus erat: quaerebatur, si prius nauis ex Asia uenerit ac post Titius consul fiat atque ita in libertatem euictus sit, an euictionis nomine teneatur.
When I sold Stichus to you, I said that he was a slave destined for freedom under this condition of manumission: 'if a ship should arrive from Asia'; but he had actually been manumitted under the condition 'if Titius should be made consul': the question was raised, if the ship should arrive from Asia first, and afterwards Titius should become consul, and thus the slave is evicted into freedom, whether the seller is liable on account of eviction.
respondit non teneri eum: etenim dolo malo emptorem facere, cum prius exstiterit ea condicio, quam euictionis nomine exsoluerit.
He answered that the seller is not liable: for indeed the buyer acts with bad faith, since that condition which the seller declared to release him from liability for eviction has been fulfilled first.
§21.2.46.3Item si post biennium liberum fore dixi, qui post annum libertatem acceperit, et post biennium in libertate euincatur, uel decem dare iussum dixerim quinque et is decem datis ad libertatem peruenerit, magis esse, ut his quoque casibus non tenear.
Likewise, if I said that a slave who had received freedom after one year would be free after two years, and after two years he is evicted into freedom; or if I said that a slave who was ordered to pay ten was ordered to pay five, and he, having paid ten, attained freedom; the better opinion is that in these cases also I am not liable.