[ULPIANUS libro quadragensimo quarto ad edictum. ] §38.5.1.prSi quid dolo malo liberti factum esse dicetur, siue testamento facto siue intestato libertus decesserit, quo minus quam pars debita bonorum ad eorum quem perueniat, qui contra tabulas bonorum possessionem accipere possunt: cognoscit praetor et operam dat, ne ea res ei fraudi sit. §38.5.1.1Si alienatio dolo malo facta sit, non quaerimus, utrum mortis causa facta sit an non sit: omni enim modo reuocatur.
[ULPIAN in the forty-fourth book on the Edict.] If it should be said that something has been done with malicious intent by a freedman, whether the freedman died testate or intestate, so that less than the due share of the goods should come to any of those who can accept the possession of goods contrary to the will: the praetor takes cognizance and sees to it that this matter does not result in a loss to him. If an alienation was made with malicious intent, we do not ask whether it was made in contemplation of death or not; for in every way it is revoked.
si uero non sit dolo malo facta, sed alias, tunc actori probandum erit mortis causa factam alienationem.
But if it was not made with malicious intent, but otherwise, then the plaintiff will have to prove that the alienation was made in contemplation of death.
si enim proponas mortis causa factam alienationem, non requirimus, utrum dolo malo facta sit an non sit: sufficit enim docere mortis causa factam, nec immerito: mortis causa enim donationes comparantur legatis et sicut in legatis non quaerimus, dolo malo factum sit an non sit, ita nec in mortis causa donationibus. §38.5.1.2Quod autem mortis causa filio donatum est, non reuocatur: nam cui liberum fuit legare filio quantumquantum uellet, is donando non uidetur fraudasse patronum. §38.5.1.3Omne autem, quodcumque in fraudem patroni gestum est, reuocatur. §38.5.1.4Dolum accipere nos oportet eius qui alienauit, non eius cui alienatum est: et ita euenit, ut qui fraudis uel doli conscius non fuit, carere debeat re in fraudem patroni alienata, etsi putauit ingenuum nec credidit libertinum. §38.5.1.5Aduersus conpatronum, qui contra tabulas bonorum possessionem omisit, Fauiana non competit, si non plus sit in eo quod donatum est quam pars debita patrono.
For if you propose that the alienation was made in contemplation of death, we do not require whether it was made with malicious intent or not; for it is sufficient to show that it was made in contemplation of death, and not without reason: for donations in contemplation of death are compared to legacies, and just as in legacies we do not ask whether it was done with malicious intent or not, so also we do not in donations in contemplation of death. However, what has been donated to a son in contemplation of death is not revoked; for he who was free to bequeath to his son as much as he wished is not deemed to have defrauded his patron by donating. Moreover, everything whatsoever that was done to defraud a patron is revoked. We ought to consider the malicious intent of the one who alienated, not of the one to whom the alienation was made; and so it happens that he who was not aware of the fraud or malicious intent must be deprived of the thing alienated to defraud the patron, even if he thought him free-born and did not believe him to be a freedman. Against a co-patron who has neglected the possession of goods contrary to the will, the Fabiana action does not lie, unless there is more in what was donated than the portion due to the patron.
quare si mortis causa ei donatum sit, partem faciet conpatrono, quemadmodum legatarius patronus facit. §38.5.1.6Utrum autem ad ea sola reuocanda Fauiana pertinet, quae quis libertus de bonis deminuit, an etiam ad ea, quae non adquisiit, uidendum est.
Therefore, if it was donated to him in contemplation of death, he will share it with the co-patron, just as a patron who is a legatee does. But we must see whether the Fabiana action extends only to revoking those things which a freedman has diminished from his goods, or also to those things which he has not acquired.
et ait Iulianus libro uicensimo sexto digestorum, si hereditatem libertus non adierit fraudandi patroni causa uel legatum reppulerit, Fauianam cessare: quod mihi uidetur uerum.
And Julian says in the twenty-sixth book of the Digests that if a freedman has not entered upon an inheritance for the purpose of defrauding his patron, or has rejected a legacy, the Fabiana action does not apply; which seems to me to be true.
quamuis enim legatum retro nostrum sit, nisi repudietur, attamen cum repudiatur, retro nostrum non fuisse palam est.
For although a legacy is retroactively ours unless it is rejected, yet when it is rejected, it is clear that it was not retroactively ours.
in ceteris quoque liberalitatibus, quas non admisit is libertus cui quis donatum uoluit, idem erit probandum Fabianam cessare: sufficit enim patrono, si nihil de suo in necem eius libertus alienauit, non si non adquisiit: proinde et si, cum sub condicione ei legatum esset, id egit, ne condicio existeret, uel, si sub condicione stipulatus fuerit, maluit deficere condicionem, dicendum est Fauianam cessare. §38.5.1.7Quid si in lite uinci uoluit? si quidem condemnatus est data opera uel in iure confessus, dicendum erit Fauianam locum habere: quod si noluit optinere, cum peteret, hic uidendum.
In other liberalities also, which the freedman did not admit when someone wished to donate to him, the same must be approved, that the Fabiana action does not apply: for it is sufficient for the patron if the freedman alienated nothing from his own property to his detriment, not if he did not acquire. Therefore, even if, when a legacy had been left to him under a condition, he acted to prevent the condition from being fulfilled, or, if he stipulated under a condition, preferred that the condition should fail, it must be said that the Fabiana action does not apply. What if he wished to be defeated in a lawsuit? If indeed he was condemned intentionally or confessed in court, it must be said that the Fabiana action has a place; but if he did not wish to succeed when he petitioned, this must be examined.
et puto hunc deminuise de patrimonio: actionem enim de bonis deminuit, quemadmodum si passus esset actionis diem abire. §38.5.1.8Sed si puta querellam inofficiosi, quam potuit, uel quam aliam, forte iniuriarum uel similem instituere noluit, non potest patronus ob eam rem Fauiana experiri. §38.5.1.9At si transegit in fraudem patroni, poterit patronus Fauiana uti. §38.5.1.10Sed si libertus filiam dotauit, hoc ipso, quod dotauit, non uidetur fraudare patronum, quia pietas patris non est reprehendenda. §38.5.1.11Si pluribus in fraudem libertus donauerit uel pluribus mortis causa, aequaliter patronus aduersus omnes in partem sibi debitam siue Fauiana siue Caluisiana experietur. §38.5.1.12Si quis in fraudem patronorum rem uendiderit uel locauerit uel permutauerit, quale sit arbitrium iudicis, uideamus.
And I think that he has diminished from his patrimony; for he diminished an action from his goods, just as if he had allowed the period for the action to expire. But if, for example, he did not wish to institute a complaint of an inofficious will which he could have, or any other action, perhaps for injury or the like, the patron cannot try the Fabiana action on that account. But if he transacted in fraud of the patron, the patron will be able to use the Fabiana action. But if a freedman provided a dowry for his daughter, by this very fact of providing a dowry he is not deemed to defraud his patron, because the affection of a father is not to be blamed. If a freedman has donated to several persons in fraud, or to several in contemplation of death, the patron will try either the Fabiana or the Calvisiana action equally against all for the share due to him. If someone has sold, leased, or exchanged a thing in fraud of patrons, let us see what the decision of the judge should be.
et in re quidem distracta deferri condicio debet emptori, utrum malit rem emptam habere iusto pretio an uero a re discedere pretio recepto: neque omnimodo rescindere debemus uenditionem, quasi libertus ius uendendi non habuerit, nec fraudemus pretio emptorem, maxime cum de dolo eius non disputetur, sed de dolo liberti. §38.5.1.13Sed si emerit in fraudem patroni libertus, aeque dicendum, si magno emit, in pretio releuandum patronum, condicione non ipsi delata, an uelit ab emptione discedere, sed uenditori, utrum malit de pretio remittere an potius rem quam uendidit recipere persoluto pretio.
And in the case of a sold thing indeed, the option ought to be offered to the buyer, whether he prefers to keep the purchased thing at a fair price, or indeed to withdraw from the thing after receiving the price; and we ought not to rescind the sale in every way, as if the freedman had not had the right of selling, nor should we defraud the buyer of the price, especially since it is not his malicious intent that is disputed, but the malicious intent of the freedman. But if a freedman has bought in fraud of the patron, it must equally be said that if he bought at a high price, the patron should be relieved in the price, with the option not being offered to the patron himself whether he wants to withdraw from the purchase, but to the seller, whether he prefers to remit from the price or rather to receive back the thing he sold after the price is paid.
et in permutatione et in locatione et conductione similiter idem obseruabimus.
And in exchange, and in lease and hire, we shall likewise observe the same.