[ULPIANUS libro quinquagensimo tertio ad edictum. ] §39.2.15.29Si pupillus tutorem non habeat, quo auctore damni infecti promittat, quasi non defendatur, missio in possessionem locum habebit.
If a ward does not have a guardian under whose authority he may promise security against threatened damage, then, just as if he were undefended, admission into possession will take place.
§39.2.15.30Si quis damni infecti in possessionem missus sit, fulcire eum et reficere insulam debere sunt qui putent eamque culpam praestare exemplo eius, qui pignori accepit.
If someone has been admitted into possession on account of threatened damage, there are some who think that he ought to prop up and repair the block of flats and be liable for negligence in this regard, after the example of one who has received a pledge.
sed alio iure utimur: cum enim ob hoc tantum missus sit, ut uice cautionis in possessione sit, nihil ei imputari, si non refecerit.
But we follow a different rule of law: for since he was admitted only for this purpose, that he should be in possession in place of security, no liability is imputed to him if he has not repaired it.
§39.2.15.31Item uideamus, si ei cautio offeratur, posteaquam missus est, an non prius decedere debeat, quam si ei caueatur etiam de eo damno, quod contigit, posteaquam missus est in possessionem? quod quidem magis probatur: repetita igitur die promittendum erit.
Likewise, let us see, if security is offered to him after he has been admitted, whether he ought not to withdraw before security is given to him also for that damage which occurred after he was admitted into possession. Indeed, this is more approved; therefore, the promise will have to be made with the date set back.
hoc amplius de impensis quoque, si quas fecerit, erit ei cauendum.
Furthermore, security will also have to be given to him for expenses, if he has incurred any.
§39.2.15.32Illud quaeritur, ex quo tempore damni ratio habeatur, utrum ex quo in possessionem uentum est an uero ex quo praetor decreuit, ut eatur in possessionem.
It is asked from what time the damage should be taken into account, whether from the time possession was entered upon or indeed from the time the praetor decreed that possession should be entered.
Labeo ex quo decretum est: Sabinus, ex quo uentum est in possessionem: ego puto causa cognita modo hanc modo illam sententiam probandam.
Labeo says from the time it was decreed; Sabinus, from the time possession was entered upon. I think that, after investigating the case, sometimes the former and sometimes the latter opinion should be approved.
plerumque enim subuenitur etiam ei, qui missus in possessionem aliqua ex causa aut non uenit aut tardius uenit in possessionem.
For usually assistance is granted also to him who, having been admitted into possession, for some reason either did not enter upon or entered upon possession later.
§39.2.15.33Posteaquam autem quis possidere iure dominii a praetore iussus est, nequaquam locus erit cautionis oblationi: et ita Labeo: ceterum nullus, inquit, finis rei inuenietur: et est hoc uerissimum seposito eo, quod quibusdam uel aetate uel qua alia iusta causa subuenitur.
But after someone has been ordered by the praetor to possess by right of ownership, there will be no room at all for the offering of security; and so says Labeo: "otherwise," he says, "no end of the matter will be found"; and this is most true, setting aside the fact that assistance is granted to certain persons either because of age or some other just cause.
§39.2.15.34Si iam ruerunt aedes, an in possessionem ruinae uel areae mittendus sit nihilo minus is, cui cautum non est, uideamus.
If the house has already collapsed, let us see whether he to whom security was not given ought nevertheless to be admitted into possession of the ruin or the vacant site.
et magis est, ut mitti debeat, et ita Labeo: sed adicit, si, posteaquam decreuerit praetor eum in possessionem mittendum, tunc aedes deciderint: et puto Labeonis sententiam ueram.
And it is more correct that he ought to be admitted, and so Labeo approves; but he adds, "if, after the praetor has decreed that he must be admitted into possession, the house then collapsed"; and I think Labeo's opinion is correct.
proinde et si refecit aliquid, erit probandum non prius eum discessurum, quam si ei sarciatur et de praeterito caueatur.
Accordingly, even if he has repaired something, it must be approved that he will not depart before he is compensated and security is given for the past.
potest autem et in factum actione reciperare hoc quod impendit, sed non amplius, quam quod boni uiri arbitratu factum sit: idem est et si alius iussu rogatuue meo eorum quid sine dolo malo fecerit et eo nomine condemnatus sim aut dederim sine dolo malo.
Moreover, he can also recover what he has expended by an action on the facts, but not more than what was done according to the judgment of an honest man; the same applies if another has done any of these things without malicious intent by my order or request, and I have been condemned on that account or have paid without malicious intent.
§39.2.15.35Si quis metu ruinae decesserit possessione, si quidem, cum adiuuare rem non posset, id fecit, Labeo scribit integrum ius eum habere, perinde ac si in possessione perseuerasset: quod si, cum posset succurrere, maluit relinquere, amississe eum praetoris beneficium neque, si postea succurri sibi uelit, audiendum eum.
If someone has departed from possession for fear of collapse, if indeed he did so because he could not assist the property, Labeo writes that he has his right unimpaired, just as if he had persisted in possession; but if, when he could have assisted, he preferred to abandon it, he has lost the benefit of the praetor, and if he should later wish to be assisted, he should not be heard.
Cassius autem ait, si metu ruinae recesserit, non hoc animo, ut aedificia derelinqueret, restituendum in possessionem: eum tamen, qui missus in possessionem non accesserit, si aedificia ruerint, beneficium praetoris amississe scribit.
Cassius, however, says that if he departed for fear of collapse, not with this intention of abandoning the buildings, he must be restored to possession; yet he writes that he who, having been admitted into possession, did not enter upon it, has lost the benefit of the praetor if the buildings collapsed.
hoc ita accipiendum erit, si uenire in possessionem neglexit, non si dum uenit ruerunt.
This must be understood to apply if he neglected to enter upon possession, not if they collapsed while he was entering.
§39.2.15.36Si quis ex hoc edicto a praetore in possessionem missus non est admissus, in factum actione uti poterit, ut tantum praestetur ei, quantum praestari ei oporteret, si de ea re cautum fuisset: extenditur enim actio in id tempus, quo damnum committitur.
If someone, having been admitted into possession by the praetor under this edict, is not admitted, he will be able to use an action on the facts, so that there may be paid to him as much as ought to be paid to him if security had been given concerning that matter; for the action is extended to that time when the damage is committed.