[PAULUS libro quadragensimo primo ad edictum. ] §37.6.2.prCum emancipati filii nomine nepotem postumum post aui mortem editum dicimus bonorum possessionem accipere oportere, necessarium erit dicere bona sua eum conferre, licet non potest dici mortis tempore aui bona habuisse, qui ipse nondum in rerum natura erat.
When we say that a posthumous grandson born after the grandfather's death in the name of an emancipated son ought to receive the possession of goods, it will be necessary to say that he contributes his own goods, although it cannot be said that he had goods at the time of the grandfather's death, since he himself was not yet in existence.
igitur siue hereditatem a patre siue legatum acceperit, hoc conferre debebit.
Therefore, whether he has received an inheritance from his father or a legacy, he must contribute this.
§37.6.2.1Illud autem intellegendum est filium in bonis habere, quod deducto aere alieno superest.
But it must be understood that a son has in his goods what remains after deducting the debt.
sed si sub condicione debeat, non statim id deducere debebit, sed id quoque conferre: contra autem caueri ei oportebit ab eo qui in potestate est, ut existente condicione defendatur pro ea parte quam contulit.
But if on the other hand he owes under a condition, he must not immediately deduct it, but must also contribute it; on the other hand, security must be given to him by the person who is in power, so that when the condition exists, he may be defended in proportion to the share he contributed.
§37.6.2.2De illis, quae sine culpa filii emancipati post mortem patris perierunt, quaeritur, ad cuius detrimentum ea pertinere debeant.
Concerning those things which perished after the father's death without the fault of the emancipated son, it is asked to whose detriment they ought to belong.
et plerique putant ea, quae sine dolo et culpa perierint, ad collationis onus non pertinere: et hoc ex illis uerbis intellegendum est, quibus praetor uiri boni arbitratu iubet conferri bona: uis autem bonus non sit arbitraturus conferendum. id, quod nec habet nec dolo nec culpa desiit habere.
And most think that those things which perished without fraud and fault do not belong to the burden of contribution; and this is to be understood from those words by which the praetor orders goods to be contributed according to the judgment of an honest man; for an honest man would not judge that that should be contributed which he neither has nor ceased to have through fraud or fault.
§37.6.2.3Id quoque, quod sub condicione ex stipulatu debetur emancipato, conferri debet.
That also which is owed to an emancipated son under a condition arising from a stipulation must be contributed.
diuersum est in legato condicionali, quia et si in potestate fuisset et post mortem patris condicio extitisset, ipse haberet actionem.
It is different in a conditional legacy, because even if he had been in power and the condition had existed after the father's death, he himself would have had the action.
§37.6.2.4Emancipatus filius si iniuriarum habet actionem, nihil conferre debet: magis enim uindictae quam pecuniae habet persecutionem: sed si furti habeat actionem, conferre debebit.
If an emancipated son has an action for injuries, he ought to contribute nothing; for he has the pursuit of vengeance rather than of money; but if he has an action for theft, he must contribute.
§37.6.2.5Si tres emancipati, duo in potestate sint, Gaius Cassius libro septimo iuris ciuilis tertias conferendas putat, ut emancipati, quia inuicem non conferunt, unius loco sint: nec indignari eos oportere, si plus conferant et minus accipiant, quia in potestate eorum fuerit bonorum possessionem omittere.
If there are three emancipated sons and two in power, Gaius Cassius, in the seventh book of Civil Law, thinks that third shares ought to be contributed, so that the emancipated sons, since they do not contribute to one another, may be in the place of one person; nor ought they to be indignant if they contribute more and receive less, because it was in their power to decline the possession of goods.
§37.6.2.6Iulianus quoque Cassii sententiam sequitur.
Julian also follows the opinion of Cassius.
Si ex emancipato filio nepos emancipatus mortuo patre simul et auo bonorum possessionem utriusque acceperit, cum uterque eorum suum heredem reliquerit: eo modo collatio explicari potest, ut, si uerbi gratia centum in bonis habuit, et patruo quinquaginta et fratri quinquaginta conferre debet: hoc enim ratio facit, siue personas siue portiones numeremus.
If an emancipated grandson from an emancipated son, both the father and the grandfather being dead, has received the possession of goods of both at the same time, when each of them has left his own heir: the contribution can be explained in this way, that, if for example he had one hundred in his goods, he must contribute fifty to his uncle and fifty to his brother; for reason makes this so, whether we count persons or shares.
§37.6.2.7Si duo nepotes ex filio mortuo emancipati bonorum possessionem aui petant, utrum dimidias an quartas patruo conferre debeant, quaeritur.
If two emancipated grandsons from a deceased son petition for the possession of goods of the grandfather, it is asked whether they ought to contribute halves or fourths to their uncle.
et uerius est semisses conferre eos oportere, quia et si uiuo auo, cum in eius potestate essent, ducenta puta adquisissent, centum filius, centum duo fratres per hereditatem aui haberent.
And it is more correct that they ought to contribute halves, because even if during the grandfather's lifetime, when they were in his power, they had acquired, say, two hundred, the son would have had one hundred and the two brothers one hundred through the inheritance of the grandfather.
§37.6.2.8Si duo emancipati bonorum possessionem peticrint et unus contulerit, alter non contulerit, huius portio tantum ei qui in potestate est prodesse debet, non etiam emancipato, quoniam eius causa qui in potestate est denegantur ei actiones.
If two emancipated sons petition for the possession of goods and one has contributed and the other has not contributed, the share of the latter ought to benefit only him who is in power, not also the emancipated son, since actions are denied to him for the sake of the one who is in power.
§37.6.2.9Si per inopiam emancipatus cauere non possit, non statim ab eo transferenda est possessio, sed sustinendum, donec possit inuenire fideiussores, ut tamen de his, quae mora deteriora futura sunt, his qui in potestate sunt actio detur ipsique caueant in medium collaturos, si cautum eis fuerit.
If through poverty an emancipated son cannot give security, the possession is not immediately to be transferred from him, but it must be delayed until he can find sureties, provided, however, that regarding those things which are likely to become worse by delay, an action is given to those who are in power, and they themselves give security that they will bring them into the common fund if security has been given to them.