[ULPIANUS libro octogensimo ad edictum. ] §39.1.21.prStipulatio de operis noui nuntiatione interponi solet, quotiens uicinus dicit ius sibi esse prohibere uicinum opus nouum inuito se facere.
[ULPIANUS, On the Edict, book 80.] A stipulation concerning the notice of a new work is usually entered into whenever a neighbor claims that he has the right to forbid his neighbor from doing a new work against his will.
§39.1.21.1Si quis autem uult post opus nouum nuntiatum impune aedificare, offerre debet satis nuntiatori: quod si fecerit, utrique consultum est tam ei qui nuntiauit, quoniam cautum habet de opere restituendo, quam ei cui nuntiatum est, quia molitio eius non impeditur: antequam enim caueat quidquid aedificauerit, interdicto restitutorio destruere compellitur.
Moreover, if anyone wishes to build with impunity after notice of a new work has been given, he ought to offer security to the notifier; if he does this, the interests of both are consulted: of him who gave notice, since he has a guarantee concerning the restoration of the work, as well as of him to whom notice was given, because his construction is not impeded. For before he provides security, whatever he has built, he is compelled to demolish by a restorative interdict.
§39.1.21.2Habet autem ista stipulatio condicionem, ut ita demum committatur, si iudicatum fuerit siue ante rem iudicatam causa quae acciderit neque res defendatur: et de dolo malo subicitur clausula.
Now that stipulation contains a condition, so that it is only then forfeited if judgment has been given, or if before judgment some cause occurs and the matter is not defended; and a clause concerning malice is subjoined.
§39.1.21.3Opus autem factum accipimus non, si unum uel alterum cementum fuit impositum, sed si proponatur instar quoddam operis et quasi facies quaedam facta operis.
Moreover, we understand "work done" not if one or two building stones have been laid, but if there is presented a certain likeness of a work and, as it were, some completed appearance of the work.
§39.1.21.4Siue autem res iudicetur siue res non defendatur, stipulatio in id committitur, ut res uiri boni arbitratu restituatur: quod si ita restitutum non erit, quanti ea res erit, tantam pecuniam dabit, si hoc petitori placuerit.
Whether, moreover, the matter is decided by judgment or the matter is not defended, the stipulation is forfeited to this end, that the thing be restored according to the arbitration of an honest man; and if it is not so restored, he shall pay as much money as the matter is worth, if this pleases the claimant.
§39.1.21.5Quaesitum est, si plures domini aedificent, an omnes cauere debeant.
The question was asked, if several owners are building, whether all of them ought to give security.
et ait Labeo unum cauere debere, quia restitutio operis fieri pro parte non possit.
And Labeo says that one ought to give security, because the restoration of a work cannot be made in part.
§39.1.21.6Idem ait et si plures nuntient, curandum esse, ut uni caueatur, si inter eos conueniat: plane si non conueniat, et singulis erit cauendum.
He also says that if several persons give notice, care must be taken that security is given to one, if they agree among themselves; clearly, if they do not agree, security must be provided to each of them individually.
§39.1.21.7Idem dicit adiciendum esse in stipulatione, ut tantum praestetur, quanti uniuscuiusque intersit, si hoc maluerint: ceterum si ita fuerit, inquit, cautum 'quanti ea res erit', dubitabitur, utrum ad totius corporis aestimationem haec uerba referuntur an uero ad quod eius interest qui stipulatur. ego puto et si sic fuerit uni cautum 'quanti ea res erit', defendi posse stipulationem sufficere: ad operis enim quantitatem ea refertur.
The same (Labeo) says that it should be added in the stipulation, if they prefer this, that only so much be performed as is of interest to each of them; "otherwise," he says, "if security has been given in this way: 'how much the thing shall be worth', it will be doubted whether these words refer to the valuation of the whole structure, or indeed to that which is of interest to him who stipulates." I think that even if security has been given to one in this way, "how much the thing shall be worth," it can be maintained that the stipulation is sufficient; for those words refer to the value of the work.