[IDEM libro quinto quaestionum. ] §30.1.108.9Si seruus alienus liber esse iussus et legatus sit, peti eum ex legato posse ait: nam cum libertas nullius momenti sit, absurdum esse per eam legatum infirmari, quod alioquin ualeret, et si solum datum fuisset.
He says that if another's slave is ordered to be free and is bequeathed, he can be claimed under the legacy; for since the grant of freedom is of no effect, it is absurd that a legacy should be invalidated by it, which would otherwise be valid even if it had been given alone.
§30.1.108.10Qui quinque in arca habebat ita legauit uel stipulanti promisit 'decem quae in arca habeo': et legatum et stipulatio ualebit, ita tamen, ut sola quinque uel ex stipulatione uel ex testamento debeantur.
A person who had five in his chest bequeathed or promised to a stipulator as follows: "the ten which I have in my chest"; both the legacy and the stipulation will be valid, but only to the extent that only five are owed either under the stipulation or under the testament.
ut uero quinque quae deerunt ex testamento peti possint, uix ratio patietur: nam quodammodo certum corpus, quod in rerum natura non sit, legatum uidetur.
However, reason will scarcely allow that the five which are missing can be claimed under the testament; for in a way, a specific thing which does not exist in nature seems to be bequeathed.
quod si mortis tempore plena summa fuerat et postea aliquod ex ea deperierit, sine dubio soli heredi deperit.
But if at the time of death the full sum had been present and afterwards some of it was lost, without doubt it is lost to the heir alone.
§30.1.108.11Si seruus legatus sit et moram heres fecerit, periculo eius et uiuit et deterior fit, ut, si debilem forte tradat, nihilo minus teneatur.
If a slave is bequeathed and the heir is in default, the slave lives and deteriorates at the heir's risk, so that if the heir happens to deliver a disabled slave, he is nonetheless liable.
§30.1.108.12Cum quid tibi legatum fideiue tuae commissum sit, ut mihi restituas, si quidem nihil praeterea ex testamento capias, dolum malum dumtaxat in exigendo eo legato, alioquin etiam culpam te mihi praestare debere existimauit: sicut in contractibus fidei bonae seruatur, ut, si quidem utriusque contrahentis commodum uersetur, etiam culpa, sin unius solius, dolus malus tantummodo praestetur.
When something is bequeathed to you or entrusted to your good faith to restore to me, if indeed you receive nothing else under the testament, he thought that you ought to be liable to me only for fraud in recovering that legacy, but otherwise also for negligence; just as is observed in contracts of good faith, where if indeed the advantage of both contracting parties is involved, even negligence is made good, but if of one alone, only fraud is made good.
§30.1.108.13Qui margarita Titio pignori dederat, filium heredem instituit et filiam exheredauit, deinde ita cauit: 'te, Titi, rogo fideique tuae committo, uti margarita, quae tibi pignori dedi, uendas et deducto omni debito tuo quod amplius erit id omne filiae meae restituas'. ex ea scriptura filiam a fratre fidei commissum petere posse, ut is actiones suas aduersus debitorem ei praestaret: hoc enim casu eum, qui creditor fuisset, debitorem intellegendum eius scilicet, quod pretium pignoris summam debiti excedat.
A person who had given pearls to Titius as a pledge instituted his son as heir and disinherited his daughter, and then provided as follows: "I ask you, Titius, and entrust to your good faith, to sell the pearls which I gave you as a pledge, and having deducted all your debt, to restore all the surplus to my daughter." He held that from this writing the daughter can claim the trust from her brother, so that he should make over to her his actions against the debtor; for in this case, the person who had been the creditor must be understood as a debtor, namely, for that amount by which the price of the pledge exceeds the sum of the debt.
§30.1.108.14Non autem mirandum, si, cum alius rogatus sit, alius fidei commisso obstringatur: nam et cum in testamento ita scribatur: 'te, Titi, rogo, ut acceptis centum illum seruum manumittas' uel 'Sempronio quid praestes', parum quidem apte scribi, uerum aeque intellegendum heredis fidei commissum, ut pecuniam Titio praestet: ideoque et ipsum Titium cum herede acturum et libertatem seruo uel Sempronio quod rogatus sit praestare cogendum.
However, it is not to be wondered at if, when one person is asked, another is bound by a trust; for even when it is written in a testament as follows: "I ask you, Titius, that having received one hundred, you manumit that slave" or "that you perform something for Sempronius," although it is written indeed not very aptly, it must equally be understood as a trust on the heir to pay the money to Titius; and therefore Titius himself will sue the heir, and will be compelled to perform the freedom to the slave or what he was asked to Sempronius.
§30.1.108.15Auidius filii sui fidei commisit, ut certam pecuniam quattuor libertis suis mutuam daret et usuras leuiores taxauerat: placuit hoc fideicommissum utile totum esse.
Avidius entrusted to the good faith of his son to give a certain sum of money as a loan to his four freedmen, and had fixed a lighter rate of interest; it was held that this trust is valid in its entirety.