[PAPINIANUS libro uicensimo octauo quaestionum. ] §36.3.5.prPostquam heres ab hostibus captus est, condicio legati, cuius nomine proposita stipulatione cautum fuerat, extitit: fideiussores interim teneri negaui, quia neque ius neque persona esset, ad quam uerba stipulationis derigi possint.
[PAPINIANUS libro uicensimo octauo quaestionum.] After the heir was captured by the enemy, the condition of the legacy, in whose name security had been provided by the proposed stipulation, was fulfilled: I decided that the guarantors were not bound in the meantime, because there was neither a right nor a person to whom the words of the stipulation could be directed.
§36.3.5.1Imperator Marcus Antoninus Iulio Balbo rescripsit eum, a quo res fideicommissae petebantur, cum appellasset, cauere uel, si caueat aduersarius, ad aduersarium transferri possessionem debere.
The Emperor Marcus Antoninus wrote back to Julius Balbus that the person from whom the trust property was being claimed ought, when he had appealed, to provide security, or, if the adversary provided security, the possession ought to be transferred to the adversary.
recte placuit principi post prouocationem quoque fideicommissi cautionem interponi: quod enim ante sententiam, si petitionis dies moraretur, fieri debuit, amitti post uictoriam dilata petitione non oportuit.
It was rightly pleasing to the prince that the security for a trust should also be interposed after an appeal: for what ought to have been done before judgment, if the day of the claim were delayed, ought not to have been lost after victory when the claim was postponed.
sed quare non cauerat de fideicommisso qui prouocauerit, si caueret aduersarius, ad eum possessionem esse transferendam rescripsit, cum alia sit edicti condicio? non enim exigitur a legatario uice mutua cautum, sed uicaria custodiae gratia possessio datur et qui optinuit in possessionem per praetorem aut praesidem inducitur.
But why did he write back that if the person who appealed did not provide security for the trust, the possession was to be transferred to the adversary if the latter provided security, when the condition of the Edict is different? For security is not required from a legatee in mutual turn, but a vicarious possession is given for the sake of custody, and the person who has prevailed is inducted into possession by the praetor or the governor.
sed praetor quidem in omnium rerum possessione, quae in causa hereditaria permanent omnimodo, fideicommissi seruandi gratia esse permittit: princeps autem earum rerum nomine, de quibus fuerat iudicatum, mutuas admisit cautiones: sicuti, cum de bonis suis conferendis filius accepta possessione cauere non potest, quia denegamus ei actiones, defertur condicio cauendi fratribus ex forma iurisdictionis, quod ex portione fratris fuerint consecuti, cum bona propria conferre coeperit, se restituturos.
But the praetor indeed permits a person to be in possession of all the things which remain in the status of inheritance in every way, for the sake of preserving the trust: the prince, however, in the name of those things about which judgment had been given, admitted mutual securities: just as when, regarding the contribution of his own goods, a son who has received possession cannot provide security, because we deny him actions, the condition of providing security is transferred to the brothers according to the form of jurisdiction, that they will restore what they have obtained from the brother's portion when he begins to contribute his own goods.
sed si nec ipsi cauere possint, utiliter probatum est uirum bonum ab utraque parte eligendum, apud quem ut sequestrem fructus deponantur quique utiles actiones a praetore datas exerceat.
But if they themselves cannot provide security either, it has been usefully approved that an upright man should be chosen by both sides, with whom the fruits may be deposited as a sequestrator and who may exercise the useful actions given by the praetor.
possessio autem ex rescripto supra relato non aliter ad eum, qui fideicommissum petit, transfertur, quam si cauerit, tametsi maxime aduersarius non per inopiam, sed per contumaciam cauere noluerit: sed si is qui uicit non possit cauere, uel res deponenda uel iurisdictio restituenda erit.
Possession, however, based on the above-mentioned rescript, is not transferred to the person claiming the trust unless he has provided security, even if the adversary refused to provide security not through lack of means but through contumacy: but if the person who won cannot provide security, either the thing must be deposited or the jurisdiction must be restored.
§36.3.5.2Si dies aut condicio legati fidei commissi petitionem actionemue differre dicatur et ideo satisdatio desideretur, heres autem per calumniam postulari contendat et relictum neget, non aliter audiendus erit qui cauere postulat, quam si scripturam, qua relictum adfirmet, exhibuerit.
If the time or condition of a legacy or trust is said to delay the petition or action, and therefore security is desired, but the heir contends that it is demanded through calumny and denies that the bequest was made, the person who demands security is not to be heard unless he produces the document by which he asserts the bequest was made.
§36.3.5.3Cum quaerebatur, ubi fideicommissi seruandi causa caueri oporteat, imperator Titus Antoninus rescripsit, si domicilium Romae non haberet heres et omnis hereditas in prouincia esset, ad satisdationem fideicommissi nomine in prouinciam fideicommissarium remittendum esse.
When it was asked where security ought to be provided for the sake of preserving a trust, the Emperor Titus Antoninus wrote back that if the heir did not have a domicile in Rome and the entire inheritance was in a province, the beneficiary of the trust should be sent back to the province for the security in the name of the trust.
quare si heres in eum locum cauendi gratia remitti desideret, ubi domicilium habet, legatarius autem ibi caueri postulet, ubi est hereditas, non erit heres remittendus.
Therefore, if the heir desires to be sent back for the sake of providing security to the place where he has a domicile, but the legatee demands that security be provided where the inheritance is, the heir is not to be sent back.
idque imperator Titus Antoninus rescripsit.
And the Emperor Titus Antoninus wrote back thus.
§36.3.5.4Quibus litteris adiectum et si bona iam distracta sunt uel testatoris permissu uel concedente legatario, pretium eorum fideicommissi seruandi causa in deposito habendum.
To this letter was added that even if the goods have already been sold, either by permission of the testator or with the consent of the legatee, their price must be held in deposit for the sake of preserving the trust.