[ULPIANUS libro quinquagensimo tertio ad edictum. ] §39.2.13.prQui bona fide a non domino emit, uidendum est, numquid repromittat, non etiam satisdet.
[ULPIANUS on the edict, book 53.] It must be considered whether he who buys in good faith from a non-owner should only make a personal promise, and not also give security with sureties.
quod quibusdam uidetur: habet autem rationem, ut magis repromittat quam satisdet: suo enim nomine id facit.
This is indeed the view of some; but it is more reasonable that he should make a personal promise rather than give security, because he does this in his own name.
§39.2.13.1Siue corporis dominus siue is qui ius habet (ut puta seruitutem) de damno infecto caueat, puto eum repromittere debere, non satisdare, quia suo nomine id facit, non alieno.
Whether the owner of the property itself or he who has a right (such as a servitude) provides security for threatened damage, I think he ought to make a personal promise, not to give security with sureties, because he does this in his own name, not in that of another.
§39.2.13.2Cum inter aedes meas et tuas sint aliae aedes non uitiosae, uidendum est, utrum tu solus mihi cauere debeas an uero et is, cuius aedes uitiosae non sunt, an ille solus, an ambo.
When between my house and yours there is another house which is not defective, we must consider whether you alone ought to provide security to me, or indeed also he whose house is not defective, or he alone, or both.
et magis est, ut ambo cauere debeant, quia fieri potest, ut aedes uitiosae in aedes non uitiosas incidentes damnum mihi dent.
And it is more correct that both ought to provide security, because it can happen that the defective house, falling upon the non-defective house, may cause damage to me.
quamuis possit quis dicere non uitio incolumium aedium hoc factum, si aliae in eas incidentes damni causam praebuerunt: sed cum prospicere sibi potuerit damni infecti cautionem, non prospexerit, merito conuenietur.
Although one might say that this was not done by the defect of the undamaged house, if another house falling upon it provided the cause of the damage; yet since he could have looked out for himself by requesting security for threatened damage, but did not do so, he will be deservedly sued.
§39.2.13.3Qui damni infecti caueri sibi postulat, prius de calumnia iurare debet: quisquis igitur iurauerit de calumnia, admittitur ad stipulationem, et non inquiretur, utrum intersit eius an non, uicinas aedes habeat an non habeat.
He who requests that security for threatened damage be provided to him must first take the oath against calumny. Whoever, therefore, has sworn against calumny is admitted to the stipulation, and it will not be inquired whether he has an interest or not, or whether he has neighboring houses or not.
totum tamen hoc iurisdictioni praetoriae subiciendum, cui cauendum sit, cui non.
However, all this must be subjected to the praetorship's jurisdiction: namely, to whom security should be provided, and to whom not.
§39.2.13.4Ceterum neque ei qui in meo deambulet neque ei qui in meo lauet uel in mea taberna deuertat, caueri debet.
On the other hand, security ought not to be provided to him who walks on my land, nor to him who bathes in my bath, or stays in my tavern.
§39.2.13.5Uicinis plane inquilinisque eorum et inquilinorum uxoribus cauendum esse ait Labeo, item his qui cum his morentur.
Clearly, Labeo says that security must be provided to neighbors and to their tenants, and to the wives of the tenants, as well as to those who dwell with them.
§39.2.13.6De illo quaeritur, an inquilinis suis dominus aedium cauere possit.
The question is raised whether a house owner can provide security to his own tenants.
et Sabinus ait inquilinis non esse cauendum: aut enim ab initio uitiosas aedes conduxerunt et habent quod sibi imputent, aut in uitium aedes inciderunt et possunt ex conducto experiri: quae sententia uerior est.
Sabinus says that security should not be provided to tenants; for either they rented a defective house from the beginning and have themselves to blame, or the house fell into a defect later and they can bring an action on the lease. This opinion is more correct.
§39.2.13.7Si quis iuxta monumentum aedificauerit uel iuxta aedificium suum monumentum fieri passus sit, damno infecto ei postea cauendum non erit, quia rem illicitam admisit: alias autem si monumento aedificium noceat, in quo nihil sit, quod imputari possit ei, ad quem ius mouumenti pertinet, cauendum est ei, ad quem ius monumenti pertinet.
If anyone builds next to a monument, or has permitted a monument to be made next to his own building, security for threatened damage will not afterwards be provided to him, because he permitted an unlawful thing. Otherwise, however, if a building damages a monument in which there is nothing that can be imputed to him to whom the right of the monument belongs, security must be provided to him to whom the right of the monument belongs.
§39.2.13.8Superficiarium et fructuarium damni infecti utiliter stipulari hodie constat.
It is established today that a superficiary and a usufructuary can usefully stipulate for threatened damage.
§39.2.13.9Sed ei, qui bona fide non domino emit, damni infecti stipulationem non competere Marcellus ait.
But Marcellus says that the stipulation for threatened damage is not available to him who buys in good faith from a non-owner.
§39.2.13.10Si quis opus nouum nuntiauerit, an nihilo minus damni infecti ei caueri debeat, Iulianus tractat.
Julian discusses whether, if someone has denounced a new work, security for threatened damage should nevertheless be provided to him.
et magis probat caueri oportere: nam et ei, qui egerit ius aduersario non esse altius tollere aedificium, caueri debere.
And he rather approves that security ought to be provided; for security ought also to be provided to him who has brought an action claiming that his adversary has no right to build a house higher.
item eum, aduersus quem interdictum quod ui aut clam competit, cauere debere Iulianus ait, quia non est cautum neque de uitio aedium neque de damno operis.
Julian also says that he against whom the interdict concerning force or stealth is available ought to provide security, because security has been given neither for the defect of the house nor for the damage of the work.
§39.2.13.11Si quis, quia sibi non cauebatur, in possessionem aedium missus fuerit, deinde is cuius aedes fuerunt, cum praeterea alias aedes haberet, desideret ab eo, qui in possessionem missus est, ut sibi damni infecti harum aedium nomine, quarum in possessionem missus est, caueret, an sit audiendus, uideamus.
If anyone, because security was not provided to him, has been put into possession of a house, and then he to whom the house belonged, although he had other houses besides, requests from him who was put into possession that he should provide security for threatened damage to him on account of this house into possession of which the other was put, let us see whether he ought to be heard.
et Iulianus scribit: is qui uitiosis aedibus cesserit, si integras retinuerit, numquid improbe ab eo, qui uitiosas aedes coepit possidere, cautionem exigit, cum ideo possessionem amiserit, quia ipse damni infecti satis non dederat? et sane parum probe postulat ab eo caueri sibi earum aedium nomine, quarum ipse cauere supersedit: quae sententia uera est.
And Julian writes: does he who has surrendered a defective house, if he has retained intact houses, not demand security dishonestly from him who began to possess the defective house, when he lost possession for the very reason that he himself had not given security for threatened damage? And indeed, it is hardly proper for him to demand that security be provided to him on account of that house for which he himself neglected to provide security; which opinion is true.
§39.2.13.12Si quis stipulaturus iurauerit nec fuerit stipulatus, an postea ei stipulari uolenti iurandum sit, uideamus.
Let us see whether, if anyone intending to stipulate has sworn but has not stipulated, he must swear again when he afterwards wishes to stipulate.
et puto iterum iurandum, quia possit fieri, ut aut tunc aut modo calumnietur.
And I think he must swear again, because it can happen that he was acting in bad faith either then or now.
§39.2.13.13Si alieno nomine caueri mihi damni infecti postulem, iurare debeo non calumniae causa id eum, cuius nomine cautum postulo, fuisse postulaturum.
If I request security for threatened damage to be provided to me in another's name, I must swear that he in whose name I request the security would not have requested it for the purpose of calumny.
§39.2.13.14Sed si eius nomine postulem, qui, si ipse postularet, iurare non compelleretur, ueluti patronus uel parens, dicendum est locum iuriiurando non esse: de quo enim ille non iuraret, nec qui uice eius postulat in hac stipulatione debet iurare.
But if I request it in the name of one who, if he himself requested it, would not be compelled to swear, such as a patron or a parent, it must be said that there is no room for the oath; for concerning what he would not swear, neither ought he who requests in his stead swear in this stipulation.
§39.2.13.15Huic stipulationi debet dies esse insertus, intra quem si quid damni contigerit, cautio locum habet: neque enim in infinitum obligatus esse debet stipulatione.
A term must be inserted in this stipulation, within which if any damage occurs, the security has application; for he ought not to be bound by a stipulation indefinitely.
ipse igitur praetor diem dabit stipulationi, aestimatione habita ex causa et ex qualitate eius damni, quod contingere speratur.
Therefore, the praetor himself will give a term to the stipulation, after making an assessment based on the circumstances and the quality of the damage which is expected to occur.