[ULPIANUS libro uicesimo tertio ad Sabinum. ] §34.3.5.prSi quis reum habeat et fideiussorem et reo liberationem leget, Iulianus ibidem scripsit reum per acceptilationem liberandum: alioquin si fideiussorem coeperit conuenire, alia ratione reus conuenitur.
[ULPIAN in the twenty-third book on Sabinus.] If anyone has a principal debtor and a surety, and bequeaths release to the debtor, Julian wrote in the same place that the debtor is to be released by acceptilation; otherwise, if the heir begins to sue the surety, the debtor is sued under another relation.
quid tamen, si donationis causa fideiussor interuenit nec habet aduersus reum regressum? uel quid si ad fideiussorem pecunia peruenerit et ipse reum dederit uice sua ipseque fideiusserit? pacto est reus liberandus.
What, however, if the surety intervened for the sake of a gift and has no recourse against the debtor? Or what if the money came to the surety, and he himself put forward the debtor in his own place and himself acted as surety? The debtor is to be released by an agreement.
atquin solemus dicere pacti exceptionem fideiussori dandam, quae reo competit: sed cum alia sit mens legantis, alia paciscentis, nequaquam hoc dicimus.
And yet we are accustomed to say that the exception of an agreement which is competent to the debtor is to be given to the surety; but since the intention of the person bequeathing is one thing, and that of the person making an agreement is another, we by no means say this here.
§34.3.5.1Quod si fideiussori sit liberatio legata, sine dubio, ut et Iulianus scripsit, pacto erit fideiussor liberandus.
But if release is bequeathed to a surety, without doubt, as Julian also wrote, the surety will have to be released by an agreement.
sed et hic puto interdum acceptilatione liberandum, si uel reus ipse uere fuit aut in eam rem socius reus.
But even here, I think that sometimes he should be released by acceptilation, if indeed he himself was truly the principal debtor, or a joint debtor in that matter.
§34.3.5.2Idem Iulianus eodem libro scripsit, si filius familias debitor fuerit et patri eius fuerit liberatio relicta, patrem pacto liberandum esse, ne etiam filius liberetur.
The same Julian wrote in the same book that if a filius familias was the debtor and release was left to his father, the father must be released by an agreement, lest the son also be released.
et parui, inquit, refert, si sit aliquid in peculio die legati cedente necne: securitatem enim pater per hoc legatum consequitur: maxime, inquit, cum rei iudicandae tempus circa peculium spectetur.
And it matters little, he says, whether there is anything in the peculium on the day the legacy vests or not; for the father obtains security through this legacy, especially, he says, since the time of the judgment is looked to regarding the peculium.
huic patri similem facit Iulianus maritum, cui uxor post diuortium liberationem dotis legauit: nam et hunc, licet die legati cedente soluendo non sit, legatarium esse: et utrumque ait solutum repetere non posse.
To this father Julian makes similar a husband to whom his wife, after divorce, bequeathed release from the dowry; for he says that this husband also, although he is insolvent on the day the legacy vests, is a legatee; and he says that neither of them can recover what has been paid.
sed est uerius quod Marcellus notat patrem petere posse (nondum enim erat debitor, cum solueret), maritum non posse, quod debitum soluit.
But it is more correct, as Marcellus notes, that the father can sue for recovery (for he was not yet a debtor when he paid), but the husband cannot, because he paid a debt.
patrem enim etsi quis debitorem existimauerit, attamen loco esse condicionalis debitoris, quem solutum repetere posse non ambigitur.
For even if anyone considers the father a debtor, nevertheless he is in the position of a conditional debtor, who, it is not doubted, can recover what has been paid.
§34.3.5.3Sed si damnatus sit heres filium liberare, non adicit Iulianus, utrum acceptilatione filius an pacto sit liberandus: sed uidetur hoc sentire, quasi acceptilatione debeat liberari, quae res patri quoque proderit.
But if the heir is ordered to release the son, Julian does not add whether the son is to be released by acceptilation or by an agreement; but he seems to think that he should be released by acceptilation, which thing will also benefit the father.
quod optinendum est, nisi euidenter approbetur contrarium sensisse testatorem, id est ne filius inquietetur, non ne pater: tunc enim acceptilatione eum non liberandum, sed pacto.
This is to be maintained unless it is clearly proved that the testator intended the contrary, that is, that the son should not be disturbed, but not that the father should not; for then he is to be released not by acceptilation, but by an agreement.
§34.3.5.4Idem Iulianus scripsit, si pro filio pater fideiusserit eique liberatio sit legata, eum pacto liberandum quasi fideiussorem, non quasi patrem, et ideo de peculio posse conueniri.
The same Julian wrote that if a father acted as surety for his son, and release was bequeathed to him, he must be released by an agreement as a surety, not as a father, and therefore he can be sued regarding the peculium.
hoc ita demum putat, si dumtaxat quasi fideiussorem eum uoluit testator liberari: ceterum si et quasi patrem, et de peculio erit liberandus.
He thinks this is so only if the testator wished him to be released merely as a surety; but if also as a father, he will have to be released regarding the peculium as well.