[PAULUS libro quadragensimo octauo ad edictum. ] §39.2.18.prDamni infecti stipulatio competit non tantum ei, cuius in bonis res est, sed etiam cuius periculo res est.
[PAULUS in the forty-eighth book on the Edict.] The stipulation of threatened damage is available not only to him to whom the property belongs in bonis, but also to him at whose risk the property is.
§39.2.18.1Quod opere facto consecutus sit dominii capione promissor, non teneri eum eo nomine Pomponius ait, quia nec loci nec operis uitio, sed publico iure id consecutus sit.
Pomponius says that if the promisor has, in consequence of work having been done, acquired ownership by usucapion, he is not liable on that account, because he acquired it not through a defect in the place or the work, but by public law.
§39.2.18.2Ei, cuius usus fructus aedium est, de uitio earundem aedium caueri non oportet, etsi alias uicinas habeat, quia reficiendi habet facultatem: nam qui uiri boni arbitratu uti deberet, reficiendi quoque potestatem consequitur.
A person who has the usufruct of a building does not need to be secured against a defect in that same building, even if he owns other neighboring buildings, because he has the power of repairing it; for he who ought to use it according to the decision of an honest man also obtains the power of repairing it.
ergo nec proprietarius audiri debet, si uelit sibi caueri a fructuario aedium nomine, quas uicinas fructuario habeat, quia habet cum fructuario actionem, ut uiri boni arbitratu is fruatur.
Therefore, the bare owner ought not to be heard if he wishes security to be given to him by the usufructuary on account of the building which he has neighboring to the usufructuary, because he has an action against the usufructuary to ensure that the latter enjoys the property according to the decision of an honest man.
§39.2.18.3Sed inquilino meo, si uicinas aedes habeat, cauere debebo damni infecti propter eas aedes.
But if my tenant owns neighboring buildings, I shall be obliged to give him security against threatened damage on account of those buildings.
§39.2.18.4Ei, qui in conducto solo superficiem imposuit, dominus soli, quod uitio soli damnum futurum sit, cauere non debebit nec soli domino superficiarius, quia inuicem ex conducto et locato habent actiones: in quas tamen actiones ultra culpam nihil uenit.
To one who has erected a structure on leased land, the owner of the land will not be obliged to give security on the ground that damage is expected from a defect in the land; nor will the superficiary be obliged to give security to the owner of the land, because they have reciprocal actions based on the contract of lease; however, in these actions, nothing beyond negligence is included.
plus autem in stipulationem uenit damni infecti, quod quidem uitium eius esse dicitur.
On the other hand, more is included in a stipulation of threatened damage, which indeed is said to be due to its defect.
§39.2.18.5Si is, qui unas aedes habebat, stipulatus fuerit, deinde uicinas comparauerit, an earum quoque nomine, quas post interpositam stipulationem comparasset, promissorem obligaret, quaesitum est.
A question has been raised whether, if a person who owned a single building has entered into a stipulation and has subsequently acquired neighboring ones, he would also bind the promisor on account of those which he acquired after the stipulation was entered into.
§39.2.18.6Iulianus scribit uidendum, ne earum dumtaxat nomine cautum habeat, de quibus inter eum et promissorem initio actum fuerit.
Julian writes that it must be considered whether he does not have security only on account of those buildings which were initially agreed upon between him and the promisor.
cui consequens uideri posse, ut et, cum aedium communium nomine duo socii stipulentur, de eo dumtaxat damno caueri uideatur, quod in parte aedium cuique socio datum fuerit.
As a consequence of this, it may appear that when two partners stipulate on account of a common building, security is deemed to be given only for that damage which is done to each partner's share in the building.
siue ergo redemerit alteram partem quis ex his siue adiudicata fuerit, non augeri promissionis obligationem.
Therefore, whether one of them has bought the other's share or it has been adjudicated to him, the obligation of the promise is not increased.
Pomponius relata Iuliani scriptura dicit non se improbare.
Pomponius, having quoted Julian's writing, says that he does not disapprove of it.
§39.2.18.7Si autem res aliquas post stipulationem interpositam in domo habere coeperit stipulator, quae ex ruina uicinarum aedium perierint, agere ex stipulatu potest, licet tunc, cum stipularetur, hae res non fuerint.
If, however, after the stipulation has been entered into, the stipulator begins to have certain things in the house which are destroyed by the collapse of the neighboring buildings, he can sue on the stipulation, even though these things were not there when he entered into the stipulation.
Emptor praedii si ante traditionem stipulatus sit, cautum habebit de eo damno, quod post traditionem factum erit.
If the buyer of an estate has entered into a stipulation before delivery, he will have security for that damage which occurs after the delivery has been made.
§39.2.18.8Uenditorem autem aedium prius, quam possessionem tradat, stipulari oportet, quia huius quoque rei culpam praestat.
But the seller of a building ought to enter into a stipulation before he delivers possession, because he is also liable for negligence in this matter.
§39.2.18.9Sed quid fiet, si uenditor sine culpa stipulari non potuerit et ob hoc emptor stipulatus fuerit? nonne damnum patitur? an hoc damnum in aliena re acciderit, reuoluitur autem ad emptorem, quia actionem ex empto non habet? sed nihil in hac causa proficit stipulatio, nisi in id, quod post traditionem accidit, quia, dum uenditoris custodia est, is stipulari debet omnemque diligentiam emptori praestare: et quod alia actione quaeri potest, id in stipulationem damni infecti omnino non deducitur.
But what will happen if the seller, without fault, has been unable to enter into a stipulation, and for this reason the buyer has entered into one? Does he not suffer damage? Or, since this damage occurred to what was another's property, does it fall back upon the buyer because he has no action on the purchase? But in this case the stipulation is of no avail except for what happens after delivery, because, while the property is in the custody of the seller, he ought to enter into the stipulation and show all diligence to the buyer; and what can be sought by another action is not brought into a stipulation of threatened damage at all.
§39.2.18.10Sed si uenditor interposuerit stipulationem, etiam id damnum continebit, quod post traditionem emptori contigerit.
But if the seller has entered into a stipulation, it will also cover that damage which occurs to the buyer after delivery.
quod esse iniquissimum Aristo ait, quoniam, si emptor quoque damni infecti stipulatus esset, duobus promissor eiusdem nomine obligaretur: nisi forte id contra se habeat, quia in hoc fit stipulatio, quanti ea res erit: ut possit uideri nihil interesse iam uenditoris.
Aristo says that this is most unfair, because, if the buyer also had entered into a stipulation of threatened damage, his promisor would be bound to two persons on account of the same thing; unless perhaps there is this point against it, that the stipulation is made for "as much as the property shall be worth," so that it can be seen that the seller has no interest anymore.
§39.2.18.11Stipulatione damni infecti interposita Sabini sententia uera est existimantis, ut, si, dum aedificatur intra diem stipulationi comprehensum, supra parietem meum domus deciderit eumque uitiauerit, licet post diem stipulationis paries decidat, possim agere, quia damnum iam tunc acceperim, cum paries uitiosus factus sit.
When a stipulation of threatened damage has been entered into, the opinion of Sabinus is correct, who thinks that if, while building is going on within the period covered by the stipulation, a house falls upon my wall and damages it, then even if the wall collapses after the period of the stipulation, I can bring an action because I already suffered damage at the time when the wall was damaged.
nec quicquam obstare, quo minus etiam antequam decidat agi possit: et, si ita concussus sit paries, ut nulla ratione recipi possit ideoque deponendus est, non minoris litem aestimandam, quam si decidisset.
Nor does anything prevent an action being brought even before it collapses; and if the wall has been so shaken that it cannot be repaired by any means and therefore must be pulled down, the value of the suit is to be estimated at no less than if it had collapsed.
§39.2.18.12Si uicinas aedes habeamus et inuicem desideremus damni infecti caueri, nihil obstabit, quo minus et ego in tuarum aedium possessionem mittar et tu in mearum.
If we own neighboring buildings and mutually desire security against threatened damage to be given, nothing will prevent both me from being put into possession of your building and you into that of mine.
§39.2.18.13Si pupillus prohibuit iri in possessionem damni infecti, placet in eum non iniuste competere hanc in factum actionem.
If a ward has prohibited entry into possession on account of threatened damage, it is agreed that this action based on the facts lies against him not unjustly.
§39.2.18.14Si mandatu meo alius prohibuerit, in me haec actio competit.
If another person has prohibited it by my mandate, this action lies against me.
§39.2.18.15Non solum autem eum punit praetor, qui in possessione esse, sed etiam eum, qui possidere passus non fuerit, cum alioquin, si is, qui iussu praetoris coeperat possidere et possidendo dominium capere, aut non admissus aut eiectus inde fuerit, utile interdictum unde ui uel Publicianam actionem habere potest.
Moreover, the praetor punishes not only him who has prevented another from being in possession, but also him who has not allowed him to possess; whereas otherwise, if he who by the order of the praetor had begun to possess and by possessing to acquire ownership by usucapion, has either not been admitted or has been ejected therefrom, he can have a useful interdict unde vi or a Publician action.
sed si in factum actione egerit, his actionibus experiri non potest, cum praetor id agat, ne damnum faciat actor, non ut in lucro uersetur.
But if he has sued by the action based on the facts, he cannot try these actions, since the praetor's aim is that the plaintiff should not suffer loss, not that he should be in a position of making a profit.
§39.2.18.16Si procurator meus damni infecti stipulatus sit, causa cognita mihi ex ea stipulatione actio competit.
If my agent has entered into a stipulation of threatened damage, on cause shown, an action is available to me on that stipulation.