[ULPIANUS libro quadragesimo ad edictum. ] §37.6.1.prHic titulus manifestam habet aequitatem: cum enim praetor ad bonorum possessionem contra tabulas emancipatos admittat participesque faciat cum his, qui sunt in potestate, bonorum paternorum: consequens esse credit, ut sua quoque bona in medium conferant, qui appetant paterna.
[ULPIAN, book forty on the Edict.] This title has an obvious equity; for since the praetor admits emancipated children to the possession of goods contrary to the provisions of the will and makes them participants in the paternal goods with those who are in power, it is believed to be a consequence that those who seek paternal goods should also bring their own goods into the common fund.
§37.6.1.1Inter eos dabitur collatio, quibus possessio data est.
Contribution shall be made among those to whom possession has been granted.
§37.6.1.2Plane si minorem uel alium, quem restituere in integrum solet praetor, restituerit ad bonorum possessionem contra tabulas petendam quam omiserat, utique etiam collationis commodum ei restituit.
Clearly, if the praetor has restored a minor or anyone else whom he is accustomed to restore to their former position, to petition for the possession of goods contrary to the provisions of the will which they had omitted, he certainly also restores to them the benefit of contribution.
§37.6.1.3Si ex dodrante fuit institutus filius qui erat in potestate, extraneus ex quadrante, emancipatum accipientem contra tabulas pro quadrante tantum bona sua collaturum Iulianus ait, quia solum quadrantem fratri abstulit: argumentum pro hac sententia adfert Pomponius, quod filius emancipatus nepotibus ex se natis solis conferre cogitur.
Julian says that if a son who was in power was appointed as heir to nine-twelfths, and an outsider to three-twelfths, an emancipated son receiving possession contrary to the provisions of the will will contribute his own goods only in proportion to three-twelfths, because he took away only three-twelfths from his brother; Pomponius adduces an argument in favor of this opinion, namely, that an emancipated son is compelled to make contribution only to the grandsons born of himself.
§37.6.1.4Pater filium quem in potestate habebat et extraneum heredem scripsit, emancipatum praeteriit: bonorum possessionem contra tabulas uterque filius accepit.
A father wrote as heirs a son whom he had in his power and an outsider, and passed over an emancipated son; both sons received the possession of goods contrary to the provisions of the will.
potest non incommode dici emancipatum ita demum conferre fratri suo debere, si aliquid ei ex causa hereditaria abstulerit: nam si minore ex parte quam dimidia is qui in potestate erat heres scriptus fuerit, inique uidebitur collationem postulare ab eo, propter quem amplius hereditate paterna habiturus est.
It can be said without inconvenience that the emancipated son ought only to make contribution to his brother if he has taken something from him on account of the inheritance; for if he who was in power was appointed heir to less than a half share, it will seem unjust for him to demand contribution from the person because of whom he is going to have more of the paternal inheritance.
§37.6.1.5Totiens igitur collationi locus est, quotiens aliquo incommodo adfectus est is qui in potestate est interuentu emancipati: ceterum si non est, collatio cessabit.
Therefore, there is room for contribution as often as he who is in power is affected by some disadvantage through the intervention of the emancipated person; but if he is not, contribution will cease.
§37.6.1.6Uel maxime autem tunc emancipatum conferre non oportet, si etiam iudicium patris meruit nec quicquam amplius nanciscitur, quam ei pater dedit.
But it is especially not proper for the emancipated person to make contribution if he has even deserved the judgment of his father and obtains nothing more than what his father gave him.
§37.6.1.7Sed et si legatis meruit semissem uel tantum, quantum contra tabulas bonorum possessione occupat, dicendum est non esse cogendum ad collationem.
But even if he has deserved a half share by way of legacies, or as much as he occupies by the possession of goods contrary to the provisions of the will, it must be said that he is not to be compelled to make contribution.
§37.6.1.8Ibidem Iulianus ait, si bonorum possessione accepta decesserit is qui in potestate est, ad collationem bonorum cogendum emancipatum, ut tantum heredi eius conferat, quantum conferret ipsi, si uiueret.
In the same place Julian says that if he who was in power died after accepting the possession of goods, the emancipated son must be compelled to make contribution of goods, so that he contributes as much to his heir as he would contribute to himself if he were alive.
quod si ante acceptam bonorum possessionem decesserit suus, heredem eius praetor ita tueri debebit, inquit, pro ea parte, qua heres scriptus fuit is qui in potestate erat, non tamen ultra uirilem: ad collationem autem non admittit eum in hunc casum, quia bonorum possessio admissa non est.
But if the own heir died before accepting the possession of goods, the praetor ought to protect his heir, he says, in proportion to the share for which he who was in power was appointed heir, yet not beyond a single person's share; however, he does not admit him to contribution in this case, because the possession of goods was not accepted.
Iubet autem praetor ita fieri collationem, ut recte caueatur: caueri autem per satisdationem oportere Pomponius ait.
Moreover, the praetor orders the contribution to be made in such a way that proper security is given; Pomponius says that security ought to be given by way of sureties.
an pignoribus caueri possit, uideamus: et Pomponius libro septuagesimo nono ad edictum scripsit et reis et pignoribus recte caueri de collatione, et ita ego quoque puto.
Let us see whether security can be given by pledges; Pomponius wrote in the seventy-ninth book on the Edict that security is properly given for contribution both by principal debtors and by pledges, and I too think so.
§37.6.1.9Si frater cauere non possit, curator portionis eius constituitur, apud quem refecta pecunia collocetur, ut tunc demum recipiat quod redactum est, cum bona propria contulerit.
If the brother cannot give security, a curator of his portion is appointed, with whom the recovered money is deposited, so that he may only then receive what has been recovered when he has contributed his own goods.
quod si per contumaciam actiones denegatae sint, oblata postea cautione recipit pristinum ius.
But if the actions have been denied through contumacy, he recovers his former right if the security is offered later.
§37.6.1.10Quamuis autem edictum praetoris de cautione loquatur, tamen etiam re posse fieri collationem Pomponius libro septuagesimo nono ad edictum scripsit.
Although, however, the Edict of the praetor speaks of security, Pomponius wrote in the seventy-ninth book on the Edict that the contribution can also be made in kind.
aut enim re, inquit, aut cautione facienda collatio est.
For, he says, the contribution must be made either in kind or by giving security.
igitur diuidat, inquit, bona sua cum fratribus et quamuis non caueat, satisfacit edicto.
Therefore, he says, if he divides his goods with his brothers, even though he does not give security, he satisfies the Edict.
sed et si quaedam diuidat, de quibusdam caueat, aeque dicimus eum satisfecisse.
But even if he divides some things and gives security for others, we say likewise that he has satisfied it.
sed cum possint esse quaedam in occulto, non satis confert qui non cauit, quamuis diuidat.
But since some things can be hidden, he who has not given security does not make sufficient contribution, although he divides.
si igitur constet inter partes, quid sit in bonis emancipati, sufficiens collatio est diuisio: si non constet, sed dicantur quaedam non esse in commune redacta, tunc propter incertum cautio erit interponenda.
If, therefore, it is agreed between the parties what is in the goods of the emancipated person, the division is a sufficient contribution; if it is not agreed, but it is alleged that some things have not been brought into the common fund, then because of the uncertainty, security must be interposed.
§37.6.1.11Sed et si tantum forte in bonis paternis emancipatus remittat, quantum ex collatione suus habere debet, dicendum est emancipatum satis contulisse uideri: idem et si nomen paterni debitoris delegauerit uel fundum remue aliam dederit pro portione bonorum, quae conferre debuit.
But even if the emancipated person should perhaps remit as much from the paternal goods as the own heir ought to have from the contribution, it must be said that the emancipated person seems to have made sufficient contribution; the same holds if he has delegated the claim on a debtor of his father, or has given a tract of land or some other thing in proportion to the share of goods which he ought to have contributed.
§37.6.1.12Si, cum duobus conferre deberet, alteri contulerit, alteri non, uel cum cauet uel cum diuidit: uidendum est, utrum sextantis tantum ei auferatur emolumentum an uero trientis totius detrahi debeat.
If, when he ought to make contribution to two persons, he has made it to one but not to the other, whether in giving security or in dividing: we must see whether the benefit only of a sixth part should be taken away from him, or whether that of the whole third part ought to be detracted.
et puto, si quidem per contumaciam non caueat, totius trientis ei denegandas actiones (nec enim uidetur cauisse, qui non omnibus cauit): quod si per inopiam, sextantis tantum denegandas, sic tamen, ut possit supplere cautionem uel collatione uel ceteris modis quibus supra diximus, aut curator constituatur rem ei saluam facturus: haberi enim debet ratio eius, qui non per contumaciam collationem non implet.
And I think that if indeed he does not give security through contumacy, the actions for the whole third part should be denied to him (for he is not deemed to have given security who has not given security to all); but if it is through poverty, they should be denied only for the sixth part, in such a way, however, that he can supply the security either by contribution or by the other methods of which we spoke above, or a curator may be appointed who will make the property safe for him; for account ought to be taken of one who does not fail to fulfill the contribution out of contumacy.