[ULPIANUS libro quinquagensimo tertio ad edictum. ] §39.2.15.prSi finita sit dies statuta in cautione, iterum arbitratu praetoris ex integro erit cauendum.
[ULPIANUS on the edict, book 53.] If the term specified in the security has expired, security must be given anew, once again according to the decision of the praetor.
§39.2.15.1Si uero sine adiectione diei stipulatio fuerit interposita, si quidem ex conuentione, quandoque fuerit commissa, stipulatu agitur, si uero per errorem, magis est illud dicendum finito die, in quem alioquin caueri solet, desiderandum esse a praetore, ut liberetur.
But if the stipulation was entered into without the addition of any term, if indeed it was by agreement, an action on the stipulation is brought whenever it is forfeited; but if it was by mistake, it is more correct to say that, when the term has expired within which security is otherwise usually given, he should request the praetor to be released.
§39.2.15.2Deinde ait praetor: 'de eo opere, quod in flumine publico ripaue eius fiet, in annos decem satisdari iubebo'. hic exigitur satisdatio et tempus stipulationi praestituit idcirco, quia in publico fit: cum autem in alieno fiat, satisdationem praetor iniungit.
Next, the praetor says: 'concerning any work that is done in a public river or on its bank, I shall order security with guarantors to be given for ten years.' Here, security with guarantors is required and a time limit is prescribed for the stipulation, because the work is done in a public place; moreover, since it is done on another's property, the praetor imposes security with guarantors.
§39.2.15.3Notandum, quod non etiam de loci uitio, sed de operis tantum cauetur, quamuis, si in priuato fiat, et de loci et de operis uitio caueatur: sed cum locus publicus sit, non erat necesse ibidem opus facienti de alio uitio quam operis satisdare damni infecti.
It should be noted that security is given not also for a defect in the place, but only for a defect in the work, although if it is done on private property, security is given for defects in both the place and the work; but since the place is public, it was not necessary for one doing work there to give security against threatened damage for any defect other than that of the work itself.
§39.2.15.4Si quid igitur damni intra decem annos acciderit, id stipulatione continetur.
Therefore, if any damage occurs within ten years, it is covered by the stipulation.
§39.2.15.5Et quod ait praetor 'de eo opere', sic accipe de eo damno, quod ex opere fiet. §39.2.15.6Si quid in uia publica fiat, quia in alieno fit, satisdandum est.
And when the praetor says 'concerning that work,' understand it as meaning: 'concerning that damage which shall arise from the work.' If anything is done in a public street, because it is done on another's property, security with guarantors must be given.
§39.2.15.7Sed praetor causa cognita tempus pro condicione operis determinabit.
But the praetor, after investigating the case, will determine the time according to the nature of the work.
§39.2.15.8Siue autem quis muniat uiam siue quid aliud in uia publica faciat, debebit cautio locum habere, ne per hoc damno priuati contingantur.
Whether one paves a road or does anything else in a public street, security must be applicable, lest private persons suffer damage thereby.
§39.2.15.9De ceteris locis publicis nihil specialiter cauetur, uerum ex generali sermone, quasi in alieno fiat, satisdari debebit damni infecti.
Concerning other public places, nothing is specifically provided, but on the basis of the general wording, as if it were done on another's property, security with guarantors must be given against threatened damage.
§39.2.15.10Si publicus locus publice reficiatur, rectissime Labeo scribit, eoque iure utimur, de damno infecto non esse cauendum, si quid uitio loci aut operis fiat: certe legem dandam operis talem, ne quid noceat uicinis damniue detur.
If a public place is repaired publicly, Labeo writes most correctly, and we follow this rule, that security against threatened damage does not have to be given, if anything happens through a defect in the place or the work; at all events, it is certain that such terms of contract must be given for the work that no harm or damage is done to neighbors.
§39.2.15.11Ex hoc edicto si non caueatur, mittitur in possessionem a praetore in eam partem, quae ruinosa esse uidetur.
If under this edict security is not given, the praetor grants possession of that part which appears to be ruinous.
§39.2.15.12An uero in totas aedes missio locum habeat, uideamus.
Let us see whether, indeed, admission into possession of the whole house takes place.
et extat Sabini sententia in totas aedes mittendum: alioquin si ex superficie, inquit, damnum timeatur, non habebit res exitum, nec profuturum in possessionem eius rei mitti, quam quis possidere non possit aut ei non expediat: et uerior est Sabini sententia.
And there exists the opinion of Sabinus that admission must be granted into the whole house; otherwise, he says, if damage is feared from the upper structure, the matter will have no issue, nor will it be of any benefit to be admitted into possession of that thing which one cannot possess or which is not advantageous for him to possess; and the opinion of Sabinus is more correct.
§39.2.15.13Sed si in plures partes diuisa domus sit, utrum in partem an in totam domum possidendam mitti quis debeat, uideamus.
But if the house is divided into several parts, let us see whether one ought to be admitted into possession of a part or of the whole house.
si tam ampla domus sit, ut et spatia inter uitiosam partem intercedant et eam quae uitium non facit, dicendum in eam solam partem mitti: si uero unita sit contextu aedificiorum, in totam.
If the house is so large that there are spaces between the defective part and that which has no defect, it must be said that admission is granted into that part alone; but if it is united by the continuity of the buildings, into the whole.
itaque et in spatiosis domibus melius dicetur in eam partem domus mittendum, quae uitiosae parti unita est.
Therefore, even in spacious houses, it will be better said that admission must be granted into that part of the house which is united with the defective part.
ceterum si modica portiuncula aedium amplissimarum uitium faceret, quale erat dicere totas aedes iubendum possidere eum, cui damni infecti non caueretur, cum sint amplissimae?
Otherwise, if a very small portion of an extremely large house had a defect, how could it be said that he, to whom security against threatened damage was not given, should be ordered to possess the whole house, since it is so extremely large?
§39.2.15.14Item quid dicemus, si insula adiacens domui uitium faciat, utrum in insulae possessionem an uero in totius domus possessionem mittendum sit? et magis est, ut non in domus possessionem, sed in insulae mittatur.
Likewise, what shall we say if an apartment building adjacent to a town house has a defect? Ought one to be admitted into possession of the apartment building, or indeed into possession of the whole town house? And it is more correct that one should be admitted not into possession of the town house, but into that of the apartment building.