[IDEM libro octogensimo primo ad edictum. ] §39.2.24.5Idem Seruius putat, si controuersia aquae insulam subuerterit, deinde stipulatoris aedificia ceciderint, nihil eum ex stipulatu consecuturum, quia id nec operis nec loci uitio factum est.
The same Servius thinks that if an inundation of water has overturned an island, and then the stipulator's buildings have collapsed, he will obtain nothing from the stipulation, because this was done neither by a defect of the work nor of the place.
si autem aqua uitiet fundamenta et sic aedificium ruisset, committi stipulationem ait: multum enim interesse, quod erat alioquin firmum, ui fluminis lapsum sit protinus, an uero ante sit uitiatum, deinde sic deciderit.
But if the water should damage the foundations and thus the building collapsed, he says that the stipulation is committed: for it makes a great difference whether that which was otherwise strong was swept away immediately by the force of the river, or indeed was damaged beforehand and then fell in this way.
et ita Labeo probat: etenim multum interesse, quod ad Aquiliam pertinet, sanum quis hominem occidat an uero factum inbecilliorem.
And Labeo approves this: for indeed it makes a great difference, as relates to the Lex Aquilia, whether one kills a healthy person or indeed one who has been made weaker.
§39.2.24.6Quamquam autem stipulatio committitur, cum uitio operis damnum factum sit, tamen, si opus factum est ab eo, quem promissor prohibere non potuit, stipulatio non committetur.
But although the stipulation is committed when damage is done by a defect of the work, nevertheless, if the work was done by someone whom the promisor could not prevent, the stipulation will not be committed.
plane si prohibere potuit, committetur.
Clearly, if he could have prevented him, it will be committed.
sed si quis promissoris nomine fecerit uel eius pro quo promissum est aut alius, qui prohiberi potuerit, stipulatio ista committetur.
But if someone has done it in the name of the promisor, or of the one on whose behalf the promise was made, or another who could have been prevented, that stipulation will be committed.
§39.2.24.7Praeterea si furni nomine damni infecti fuerit cautum, deinde furnarii culpa damnum datum fuerit, non uenire in hanc stipulationem plerisque uidetur.
Furthermore, if security for threatened damage was given on account of an oven, and then damage was given by the fault of the baker, it seems to most that this does not come under this stipulation.
§39.2.24.8Cassius quoque scribit, quod contra ea damnum datum est, cui nulla ope occurri poterit, stipulationem non tenere.
Cassius also writes that a stipulation does not hold for damage given against that which could be met by no resource.
§39.2.24.9Item apud Uiuianum relatum est, si ex agro uicini arbores ui tempestatis confractae in meum agrum deciderint eoque facto uitibus meis uel segetibus nocent uel aedificia demoliunt, stipulationem istam, in qua haec comprehenduntur 'si quid arborum lociue uitio acciderit', non esse utilem, quia non arborum uitio, sed ui uentorum damnum mihi datum est.
Likewise, it is reported in Vivianus that if trees broken by the force of a storm from a neighbor's field have fallen into my field, and by this act damage my vines or crops or demolish buildings, that stipulation, in which these words are contained 'if anything happens by a defect of the trees or the place', is not useful, because the damage was given to me not by a defect of the trees, but by the force of the winds.
plane si uetustate arborum hoc fiebat, possumus dicere uitio arborum damnum mihi dari.
Clearly, if this happened by the decay of the trees, we can say that damage is given to me by a defect of the trees.
§39.2.24.10Idem ait, si damni infecti aedium mearum nomine tibi promisero, deinde hae aedes ui tempestatis in tua aedificia ceciderint eaque diruerint, nihil ex ea stipulatione praestari, quia nullum damnum uitio mearum aedium tibi contingit: nisi forte ita uitiosae meae aedes fuerint, ut qualibet uel minima tempestate ruerint.
The same says that if I shall have promised you on account of my buildings for threatened damage, and then these buildings have fallen onto your buildings by the force of a storm and demolished them, nothing is performed from that stipulation, because no damage happened to you by a defect of my buildings: unless perhaps my buildings were so defective that they would collapse by any, even the smallest, storm.
haec omnia uera sunt.
All these things are true.
§39.2.24.11Sed et quod Labeo putat uerum est, referre, utrum impulsu fluminis ruit aedificium an deterius ante factum postea ceciderit.
But what Labeo thinks is also true, that it matters whether the building collapsed by the impact of the river, or, having been made worse before, fell afterwards.
§39.2.24.12Item uideamus, quando damnum dari uideatur: stipulatio enim hoc continet, quod uitio aedium loci operis damnum fit.
Likewise let us see when damage is deemed to be given: for the stipulation contains this, that damage is done by a defect of the buildings, place, or work.
ut puta in domo mea puteum aperio, quo aperto uenae putei praecisae sunt: an tenear? ait Trebatius non teneri me damni infecti: neque enim existimari operis mei uitio damnum tibi dari in ea re, in qua iure meo usus sum.
As for example, I open a well in my house, by the opening of which the veins of your well are cut off: am I liable? Trebatius says that I am not liable for threatened damage: for indeed it is not considered that damage is given to you by a defect of my work in that matter in which I used my own right.
si tamen tam alte fodiam in meo, ut paries tuus stare non possit, damni infecti stipulatio committetur.
If however I shall dig so deep in my own property that your wall cannot stand, the stipulation for threatened damage will be committed.