[ULPIANUS libro quadragensimo quinto ad edictum. ] §38.2.16.prIn seruitutem petisse non is uidetur, qui ei, qui in possessione erat seruitutis, petenti se in libertatem contradixit, uerum is, qui ex libertate petit in seruitutem.
[ULPIANUS libro quadragensimo quinto ad edictum.] He is not deemed to have claimed into slavery who disputed the claim of one who was in possession of slavery and was seeking his freedom for himself, but rather he who claims from a state of freedom into slavery.
§38.2.16.1Sed et si quis non totum suum, sed pro parte uel usum fructum in eo suum dicat uel quid aliud, quod habere non potest in eo, nisi seruus sit, an repellatur quasi in seruitutem petierit? quod est uerius.
But also if anyone should declare that not the whole but a share of him is his own, or that the usufruct in him is his own, or anything else which he cannot have in him unless he is a slave, should he be barred as if he had claimed him into slavery? This is more correct.
§38.2.16.2Si petierit in seruitutem et optinuerit, mox cognita ueritate passus sit in libertate morari, non debet ei obesse, maxime si habuit iustam causam errandi.
If he has claimed into slavery and obtained it, but soon, upon the truth being known, has allowed him to remain in freedom, it ought not to prejudice him, especially if he had a just cause of error.
§38.2.16.3Petisse in seruitutem non uidetur, qui ante litem contestatam destitit: sed et si post litem contestatam, dicendum est nec id nocere debere, quia non usque ad sententiam durauit.
He is not deemed to have claimed into slavery who desisted before the joinder of issue (litis contestatio); but even if after the joinder of issue, it must be said that neither ought this to prejudice him, because it did not continue until the judgment.
§38.2.16.4Si patroni filius sit uel exheredatus uel si in seruitutem libertum paternum petiit uel capitis accusauerit libertum, non nocet hoc liberis eius, qui in potestate non sunt: et hoc diui fratres Quintilliis rescripserunt.
If the son of a patron is either disinherited, or if he has claimed the paternal freedman into slavery or has accused the freedman of a capital crime, this does not prejudice his children who are not in his power; and this the deified brothers replied to the Quintilii.
§38.2.16.5Si quis bonorum possessionem contra tabulas liberti acceperit, ab omni liberti iudicio repellitur, nec tantum si ipsi liberto heres fuerit scriptus, uerum etiam si inpuberi filio substitutus.
If anyone has received possession of goods contrary to the will of a freedman, he is barred from every benefit of the freedman's will, not only if he himself was appointed heir to the freedman, but also if he was substituted to an impuberate son.
nam et Iulianus scripsit, si post petitam bonorum possessionem adierit impuberis filii liberti hereditatem patronus, denegari ei debere actiones.
For Julian also wrote that if, after claiming possession of goods, the patron has entered upon the inheritance of the impuberate son of the freedman, actions ought to be denied to him.
§38.2.16.6Sed et si quid codicillis fuerit patrono relictum uel mortis causa donatum, simili modo horum quoque persecutio denegabitur.
But even if anything has been left to the patron by codicils or given by reason of death (mortis causa), in like manner the recovery of these also will be denied.
§38.2.16.7Nonnumquam plane post petitam bonorum possessionem dabitur patrono legati persecutio, si nihil ad emolumentum eius peruenturum sit, quia forte rogatus est alii restituere.
Sometimes, clearly, even after claiming possession of goods, the recovery of a legacy will be granted to a patron, if nothing is to come to his own advantage, because perhaps he has been requested to restore it to another.
§38.2.16.8Praeterea non tantum quod ipsis nominatim datum est, id se praetor denegaturum ait, uerum etiam si quid proponas ad ipsos per alios peruenturum, ut puta per subiectas personas, quod quidem sunt habituri, non restituturi.
Moreover, the praetor says that he will deny not only what is given to them by name, but also if you suppose that anything will come to them through others, as for instance through subject persons, which indeed they are to keep, not to restore.
§38.2.16.9Dabimus legati petitionem patrono, si seruo patroni dederit libertatem pretio eius patrono praelegato.
We will grant the petition for a legacy to the patron, if the freedman has given freedom to a slave of the patron, the price of him having been pre-bequeathed to the patron.
§38.2.16.10Ei, qui substitutus erit patrono, qui contra tabulas possessionem petierit, actio eius partis, cuius patrono possessio data erit, non datur.
To him who is substituted to a patron who has claimed possession contrary to the will, the action for that part of which possession was given to the patron is not granted.
§38.2.16.11Si patronus sit substitutus et patronus uiuo testatore decesserit, filium patroni petentem contra tabulas bonorum possessionem non solius substituti partem occupare, uerum omnibus heredibus pro parte aliquid auferre constat.
If a patron is substituted and the patron dies while the testator is still living, it is well established that the son of the patron claiming possession of goods contrary to the will does not occupy only the part of the person substituted, but takes away something proportionally from all the heirs.