[ULPIANUS libro uicesimo secundo ad Sabinum. ] §33.9.3.prQui penum legat quid legato complectatur, uideamus.
[ULPIANUS in the twenty-second book on Sabinus.] Let us see what is included in the legacy by one who bequeaths provisions.
et Quintus Mucius scribit libro secundo iuris ciuilis penu legata contineri, quae esui potuique sunt.
And Quintus Mucius writes in the second book of Civil Law that a legacy of provisions includes those things which are for eating and drinking.
idem Sabinus libris ad Q. Scaeuola apud Uitellium scribit: quae harum, inquit, patris familiae uxoris liberorumue eius uel familiae, quae circa eos esse solet, item iumentorum, quae dominici usus causa parata sunt. §33.9.3.1Sed Aristo notat etiam quae esui potuique non sunt contineri legato, ut puta ea, in quibus esse solemus, oleum forte, garum muriam mel ceteraque his similia.
Likewise, Sabinus writes in his books on Quintus Scaevola edited by Vitellius: "Of these provisions," he says, "there are included those which are for the father of the family, his wife, his children, or his household of slaves that is accustomed to be about them, and likewise for the beasts of burden which have been provided for the owner's use." But Aristo notes that even those things which are not for eating and drinking are included in the legacy, such as, for instance, those with which we are accustomed to eat, such as oil, fish sauce, brine, honey, and other things similar to these.
§33.9.3.2Plane, inquit, si penus esculenta legetur, Labeo libro nono posteriorum scribit nihil eorum cedere, quia non haec esse, sed per ea solemus.
Clearly, he says, if a "legacy of edible provisions" is bequeathed, Labeo writes in the ninth book of his Posthumous Works that none of these things are included, because we are not accustomed to eat these things themselves, but to eat by means of them.
Trebatius in melle contra scribit, merito, quia mel esse solemus.
Trebatius writes to the contrary regarding honey, and with good reason, because we are accustomed to eat honey.
sed Proculus omnia haec contineri recte scribit, nisi contraria mens testatoris appareat.
But Proculus rightly writes that all these things are included, unless a contrary intention of the testator appears.
§33.9.3.3Esculenta, utrum ea quae esse, an et ea per quae esse solemus, legauerit? et ea quoque legato contineri credendum, nisi contraria mens patris familias doceatur.
Regarding "edible things," did he bequeath those which we eat, or also those by means of which we are accustomed to eat? It must be believed that the latter also are included in the legacy, unless a contrary intention of the father of the family is shown.
mella certe semper esculentae penui cedere, lacertas quoque cum muria sua contineri nec Labeo negauit.
Certainly, even Labeo did not deny that honey always belongs to edible provisions, and that pickled fish are also included along with their brine.
§33.9.3.4Poculenta penu ea, quae uini loco pater familias habuit, continebuntur, supra scripta uero non continebuntur.
In "drinkable provisions," those things which the father of the family kept in place of wine will be included, but the things written above will not be included.
§33.9.3.5Penori acetum quoque cedere nemo dubitat, nisi exstinguendi ignis causa fuit paratum: tunc enim esui potuique non fuit: et ita Ofilius libro sexto decimo actionum scribit.
No one doubts that vinegar also belongs to provisions, unless it was prepared for the purpose of extinguishing fire; for then it was not for eating and drinking; and Ofilius writes thus in the sixteenth book of Actions.
§33.9.3.6Sed quod diximus 'usus sui gratia paratum' accipiendum erit et amicorum eius et clientium et uniuersorum, quos circa se habet, non etiam eius familiae, quam neque circa se neque circa suos habet: puta si qui sunt in uillis deputati.
But what we said, "prepared for his own use," must be understood as including his friends, clients, and all whom he has about him, but not also those of his slaves whom he has neither about himself nor about his family; for example, those who are assigned to the country villas.
quos Quintus Mucius sic definiebat, ut eorum cibaria contineri putet, qui opus non facerent: sed materiam praebuit Seruio notandi, ut textorum et textricum cibaria diceret contineri: sed Mucius eos uoluit significare, qui circa patrem familias sunt.
Quintus Mucius used to define these in such a way that he thought the food of those who did not perform work was included; but this provided Servius with material for commenting that the food of male and female weavers would thus be included; however, Mucius wanted to mean those who are about the father of the family.
§33.9.3.7Simili modo et iumentorum cibaria penui continentur, sed eorum iumentorum, quae usibus ipsius et amicorum deseruiunt: ceterum si qua iumenta agris deseruiebant uel locabantur, legato non cedere cibaria eorum.
In like manner, the fodder of beasts of burden is also included in provisions, but only of those beasts of burden which serve the use of himself and his friends; on the other hand, if any beasts of burden served the fields or were hired out, their fodder does not belong to the legacy.
§33.9.3.8Siue autem frumentum siue quid leguminis in cella penuaria habuit, penori legato continebitur, sed et hordeum siue familiae siue iumentorum gratia: et Ofilius scribit libro sexto decimo actionum.
Whether he had grain or any kind of legumes in the pantry, it will be included in the legacy of provisions, and also barley, whether for the sake of the slaves or of the beasts of burden; and Ofilius writes this in the sixteenth book of Actions.
§33.9.3.9Ligna et Sabinus carbones ceteraque, per quae penus conficeretur, an penori legato contineantur, quaeritur.
It is asked whether wood and, according to Sabinus, charcoal and other things by means of which provisions are prepared, are included in the legacy of provisions.
et Quintus Mucius et Ofilius negauerunt: non magis quam molae, inquiunt, continentur.
Both Quintus Mucius and Ofilius denied this; they say that they are no more included than millstones.
idem et tus et ceras contineri negauerunt.
They also denied that incense and wax are included.
sed Rutilius et ligna et carbones, quae non uendendi causa parata sunt, contineri ait.
But Rutilius says that both wood and charcoal, which have been provided not for the purpose of selling, are included.
Sextus autem Caecilius etiam tus et cereos in domesticum usum paratos contineri legato scribit.
On the other hand, Sextus Caecilius writes that even incense and wax candles prepared for domestic use are included in the legacy.
§33.9.3.10Seruius apud Melam et unguentum et chartas epistulares penoris esse scribit et est uerius haec omnia, odores quoque contineri: sed et chartas ad ratiunculam uel ad logarium paratas contineri.
Servius, in Mela, writes that both ointment and writing paper belong to provisions, and it is more correct that all these things, as well as perfumes, are included; and also that paper prepared for accounts or for journals is included.
§33.9.3.11Uasa quoque penuaria quin contineantur, nulla dubitatio est.
There is also no doubt that vessels for provisions are included.
Aristo autem scribit dolia non contineri, et est uerum secundum illam distinctionem, quam supra in uino fecimus.
But Aristo writes that large jars are not included, and this is true according to that distinction which we made above regarding wine.
nec frumenti nec leguminum thecae (arculae forte uel sportae) uel si qua alia sunt, quae horrei penuarii uel cellae penuariae instruendae gratia habentur, non continebuntur, sed ea sola continentur, sine quibus penus haberi non recte potest.
Neither containers for grain nor for legumes (such as small chests or baskets), nor any other things which are kept for the purpose of equipping a granary or a pantry, will be included, but only those things are included without which provisions cannot be properly kept.