[ULPIANUS libro quadragensimo quarto ad edictum. ] §38.5.1.14Sed si rem quidem bona fide uendiderit et sine ulla gratia libertus, pretium autem acceptum alii donauit, uidendum erit, quis Fauiana inquietetur, utrum qui rem emit an uero is qui pretium dono accepit? et Pomponius libro octagensimo tertio recte scripsit emptorem non esse inquietandum: fraus enim patrono in pretio facta est: eum igitur qui pretium dono accepit Fauiana conueniendum. §38.5.1.15Et alias uideamus, si dicat patronus rem quidem iusto pretio uenisse, uerumtamen hoc interesse sua non esse uenumdatam inque hoc esse fraudem, quod uenierit possessio, in quam habet patronus affectionem uel opportunitatis uel uicinitatis uel caeli uel quod illic educatus sit uel parentes sepulti, an debeat audiri uolens reuocare.
[ULPIAN in the forty-fourth book on the Edict.] But if indeed the freedman sold a thing in good faith and without any favor, but donated the received price to another, we must see who is disturbed by the Fabiana action, whether he who bought the thing or indeed he who received the price as a gift? And Pomponius in the eighty-third book rightly wrote that the buyer is not to be disturbed; for the fraud was done to the patron in the price; therefore, he who received the price as a gift is to be sued by the Fabiana action. And at other times let us see, if the patron should say that the thing was indeed sold at a fair price, but nevertheless it was in his interest that it should not have been sold, and that the fraud consists in this, that a possession has been sold for which the patron has an affection either because of convenience, or neighborhood, or climate, or because he was brought up there, or his parents are buried there, whether he ought to be heard if he wishes to revoke it.
sed nullo pacto erit audiendus: fraus enim in damno accipitur pecuniario. §38.5.1.16Sed si forte et res uilius distracta sit et pretium alii donatum, uterque Fauiano iudicio conuenietur et qui uili emit et qui pecuniam accepit muneri.
But he is by no means to be heard; for fraud is understood in terms of pecuniary loss. But if perhaps both the thing was sold cheaper and the price was donated to another, both will be sued by the Fabiana action: both he who bought cheap and he who received the money as a gift.
is tamen qui emit si malit rem restituere, non alias restituet, quam si pretium quod numerauit recipiat.
Yet he who bought, if he prefers to restore the thing, shall not restore it otherwise than if he receives back the price which he paid.
quid ergo, si delegatus emptor soluit ei cui donabat libertus, an nihilo minus reciperaret? et magis est, ut reciperare debeat, licet pretium ad alium peruenit, qui soluendo non est: nam et si acceptum pretium libertus prodegisset, diceremus nihilo minus eum qui dedit recipere debere, si uelit ab emptione discedere. §38.5.1.17Si mutuam pecuniam libertus in fraudem patroni acceperit, an Fauiana locum habeat, uideamus.
What then, if the buyer, having been delegated, paid to him to whom the freedman was donating, would he nonetheless recover? And it is more reasonable that he ought to recover, although the price came to another who is insolvent; for even if the freedman had squandered the received price, we would say that nonetheless he who gave it ought to receive it back, if he wishes to withdraw from the purchase. If the freedman received money as a loan in fraud of the patron, let us see whether the Fabiana action has a place.
et quod remedium in hoc est? accepit mutuam: si quod accepit donauit, conuenit eum patronus cui donauit libertus: sed accepit et prodegit: non debet perdere qui mutuum dedit, nec ei imputari, cur dedit. §38.5.1.18Plane si non accepit et spopondit stipulanti, erit Fauianae locus. §38.5.1.19Si fideiussit apud me libertus uel rem suam pro alio pignori dedit in necem patroni, an Fauiana locum habeat, uideamus, et numquid cum damno meo non debeat patrono subueniri: neque enim donauit aliquid mihi, si pro aliquo interuenit, qui non fuit soluendo: eoque iure utimur.
And what remedy is there in this? He received a loan: if he donated what he received, the patron sues him to whom the freedman donated; but he received and squandered it: he who gave the loan ought not to lose, nor should it be imputed to him why he gave it. Clearly, if he did not receive and promised to the stipulator, there will be room for the Fabiana action. If the freedman became a surety with me or gave his own thing as a pledge for another to the destruction of the patron, let us see whether the Fabiana action has a place, and whether the patron ought not to be aided with my loss; for indeed he did not donate anything to me, if he intervened on behalf of someone who was insolvent; and we observe this rule.
igitur creditor non poterit Fauiana conueniri: debitor poterit quidem, sed potest et mandati: plane si deficiat mandati actio, quia donationis causa interuenit, erit Fauianae locus. §38.5.1.20Sed et si mandator extitit pro aliquo libertus, idem erit probandum. §38.5.1.21Quamuis autem in partem Fauiana competat, attamen in his quae diuidi non possunt in solidum competit, ut puta in seruitute. §38.5.1.22Si seruo meo uel filio familias libertus in fraudem patroni quid dederit, an aduersus me iudicium Fauianum competat, uideamus.
Therefore, the creditor cannot be sued by the Fabiana action; the debtor indeed can be, but he can also be sued by the action of mandate; clearly, if the action of mandate is lacking, because he intervened for the sake of donation, there will be room for the Fabiana action. But also if the freedman stood as a mandator for someone, the same must be approved. Although, however, the Fabiana action lies for a share, nevertheless in those things which cannot be divided, it lies for the whole, as for example in a servitude. If the freedman gave something to my slave or to a son under family authority in fraud of the patron, let us see whether the Fabiana action lies against me.
et mihi uidetur sufficere aduersus me patremque arbitrioque iudicis contineri tam id, quod in rem uersum est, condemnandi, quam id quod in peculio. §38.5.1.23Sed si iussu patris contractum cum filio est, pater utique tenebitur. §38.5.1.24Si cum seruo in fraudem patroni libertus contraxerit isque fuerit manumissus, an Fauiana teneatur, quaeritur.
And it seems to me to be sufficient against me and against me as father, and that it is contained within the judge's discretion to condemn both for that which has been turned to profit, and for that which is in the peculium. But if the contract was made with the son by order of the father, the father will certainly be liable. If the freedman contracted with a slave in fraud of the patron and that slave has been manumitted, it is asked whether he is liable under the Fabiana action.
et cum dixerimus dolum tantum liberti spectandum, non etiam eius cum quo contraxit, potest manumissus iste Fabiana non teneri. §38.5.1.25Item quaeri potest, manumisso uel mortuo uel alienato seruo an intra annum agendum sit.
And since we have said that only the malicious intent of the freedman is to be regarded, not also of him with whom he contracted, that manumitted person can not be held liable under the Fabiana action. Likewise, it can be asked, when a slave has been manumitted, or has died, or has been alienated, whether the action must be brought within a year.
et ait Pomponius agendum. §38.5.1.26Haec actio in personam est, non in rem, et in heredem competit et in ceteros successores, et heredi et ceteris successoribus patroni, et non est hereditaria, id est ex bonis liberti, sed propria patroni. §38.5.1.27Si libertus in fraudem patroni aliquid dederit, deinde, defuncto patrono uiuo liberto, filius patroni acceperit bonorum possessionem contra tabulas liberti, an Fabiana uti possit ad reuocanda ea quae sunt alienata? et est uerum, quod et Pomponius probat libro octagensimo tertio, item Papinianus libro quarto decimo quaestionum, competere ei Fauianam: sufficere enim, quod in fraudem patronatus factum sit: magis enim fraudem rei, non personae accipimus. §38.5.1.28In hanc actionem etiam fructus ueniunt, qui sunt post litem contestatam percepti.
And Pomponius says it must be brought. This action is in personam, not in rem, and it lies both against the heir and against other successors, and for the heir and other successors of the patron, and it is not hereditary, that is, arising from the goods of the freedman, but is proper to the patron. If a freedman gave something in fraud of the patron, and then, after the patron died while the freedman was still living, the patron's son received possession of goods contrary to the will of the freedman, can he use the Fabiana action to revoke those things which were alienated? And it is true, which Pomponius also approves in the eighty-third book, likewise Papinian in the fourteenth book of Questions, that the Fabiana action lies for him; for it is sufficient that it was done to the fraud of the patronage; for we understand fraud rather as of the thing, not of the person. Into this action also come the fruits which have been gathered after the joinder of issue.