[ULPIANUS libro trigesimo quarto ad edictum. ] §25.6.1.prSi de possessione uentris nomine quaeratur et deferente herede mulier iurauerit praegnatem se esse, seruandum est iusiurandum nec tenebitur mulier, quasi calumniae causa fuerit in possessionem missa, nec uis ei facienda est post iusiurandum.
[ULPIANUS, On the Edict, Book 34] If there is a dispute regarding possession on account of the unborn child, and, upon the heir tendering the oath, the woman swears that she is pregnant, the oath must be observed, and the woman shall not be held liable as if she had been put into possession for the purpose of calumny, nor must force be used against her after the oath.
si tamen peperit, quaeretur ueritas, an ex eo praegnas fuerit: alteri enim nec prodest nec nocet iusiurandum inter alios factum, nec partui igitur nocebit.
If, however, she has given birth, the truth shall be investigated, as to whether she was pregnant by him; for an oath taken between other parties neither benefits nor prejudices a third party, and therefore it will not prejudice the offspring either.
§25.6.1.1Et hoc edictum ex eadem causa proficiscitur, qua superius: debet enim praetor, quemadmodum facilis est circa bonorum possessionem dandam mulieri uentris nomine, ita calumniam eius impunitam non relinquere.
And this edict originates from the same cause as the previous one: for the praetor, just as he is lenient in granting possession of goods to a woman on account of the unborn child, so ought he not to leave her calumny unpunished.
§25.6.1.2Per calumniam autem in possessione fuisse uidetur, quae sciens prudensque se praegnatem non esse uoluit in possessionem uenire.
Furthermore, a woman is deemed to have been in possession by calumny who, knowing and being well aware that she was not pregnant, wished to enter into possession.
§25.6.1.3Hanc autem actionem praetor intra annum utilem pollicetur, ultra non, uidelicet quasi poenalem.
However, the praetor promises this action within an available year, and not beyond, clearly as if it were a penal action.
§25.6.1.4Simili autem modo et hic quanti agentis interfuit praetor actionem pollicetur.
In a similar manner, here also the praetor promises an action for the amount of the plaintiff's interest.
§25.6.1.5In parentem etiam praetor actionem pollicetur, si modo per eum factum sit, ut in possessionem per calumniam ueniret.
The praetor also promises an action against the parent, provided that it was brought about through him that she entered into possession by calumny.
§25.6.1.6Competit autem haec actio ei, cuius interfuit in possessionem missam non esse: ut puta uel coheredi speranti partum, uel si qui substitutus fuit, uel qui ab intestato, si partus non fuisset, succedere potuit.
Now, this action belongs to him who had an interest in her not being put into possession: as, for example, either a co-heir expecting the birth, or if anyone was appointed as a substitute, or one who could have succeeded on intestacy if there had been no offspring.
§25.6.1.7Interesse autem uidetur primum de alimentis, quae in uentrem sunt erogata: nec enim alias haec repetuntur, nisi per calumniam in possessionem uenit: ceterum si res calumnia caret, nihil praestabit mulier, quae sine causa alta est sub praetextu uentris.
Moreover, the interest is deemed to consist, first of all, of the maintenance that was expended on account of the unborn child; for these expenses are not recovered in any other way than if she entered into possession by calumny; but if the matter is free from calumny, the woman, who was maintained without cause under the pretext of the unborn child, shall perform nothing.
§25.6.1.8Nonnumquam augebitur quod interest, si quis forte dubitans, an praegnas sit, exclusus sit hereditate: nam heredi eius qui exclusus est dandam hanc actionem Iulianus ait, siquidem eius quoque interfuit non fuisse calumniae causa in possessione mulierem, quia hoc si non fuisset, adeundo hereditatem institutus heredi suo locupletiorem hereditatem suam relinqueret.
Sometimes the interest will be increased if someone, perhaps doubting whether she was pregnant, has been excluded from the inheritance; for Julian says that this action must be granted to the heir of the person who was excluded, if indeed it was also of interest to him that the woman had not been in possession by cause of calumny, because if this had not been the case, the appointed heir, by entering upon the inheritance, would have left his own inheritance more valuable to his own heir.
sed et hoc imputatur mulieri, quod deminuta sunt multa in hereditate, dum hic contemplatione uentris non attigit hereditatem.
But this also is imputed to the woman, that many things in the inheritance were diminished while this person, out of consideration for the unborn child, did not touch the inheritance.
§25.6.1.9Idem Iulianus libro decimo nono digestorum sic ait: si substitutus manente muliere in possessione decesserit, heres eius eadem actione pretium hereditatis a muliere exiget.
The same Julian, in the nineteenth book of his Digests, speaks thus: if a substitute dies while the woman remains in possession, his heir shall demand the value of the inheritance from the woman by the same action.
§25.6.1.10Sed an decedant legata ceteraque onera hereditatis, uidendum.
But it must be considered whether legacies and other burdens of the inheritance are deducted.
et mihi uidetur posse dici legatarios potius cum muliere usuros hac actione, quia et ipsorum interfuit adiri hereditatem.
And it seems to me that it can be said that the legatees will rather use this action against the woman, because it was also of interest to them that the inheritance should be entered upon.
§25.6.1.11Libertati plane subueniendum erit aduersus eum, qui propter hereditatem hac actione egit, scilicet ut fideicommissarias cogatur is praestare, qui pretium utique etiam eorum consequitur: sed et directis credo praetorem succurrere oportere, ut interuentu suo tueatur eorum libertatem.
Clearly, freedom must be assisted against him who brought this action on account of the inheritance, namely, so that he is compelled to perform the fideicommissary freedoms, since he certainly recovers their value as well; but I believe that the praetor ought also to assist direct freedoms, so that by his intervention he may protect their freedom.
§25.6.1.12Si dolus filiae familias interuenerit et particeps doli fuerit pater, suo nomine tenebitur.
If the malice of a daughter-in-power has intervened and the father was a participant in the malice, he shall be held liable in his own name.