[PAULUS libro decimo ad Sabinum. ] §39.2.38.prEmptor aedium ante traditam sibi possessionem ideo inutiliter stipulatur, quia uenditor omnem diligentiam ei praestare debet.
[PAULUS in the tenth book on Sabinus.] A buyer of a building, before possession has been delivered to him, stipulates to no purpose, for the reason that the seller must guarantee him all diligence.
tunc certe utiliter stipulatur, cum omnis culpa a uenditore aberit, ueluti si precario emptori in his aedibus esse permisit custodiamque ei afuturus tradidit.
He certainly stipulates with effect when all fault is absent from the seller, as, for example, if the seller, being about to be absent, has permitted the buyer to be in this building by precarious tenure and has delivered the custody of it to him.
§39.2.38.1Si agri nomine non caueatur, in eam partem agri mittendum est, ex qua periculum timeatur: eiusque rei ratio haec est, quod in aedificiis partes quoque reliquae a uitiosa parte traherentur, at in agris non idem est.
If security is not given in respect of land, admission must be granted into that part of the land from which danger is feared; and the reason for this is that in buildings the remaining parts also would be dragged down by the defective part, whereas in land it is not the same.
sed dicendum est, ut in domibus quoque maioribus interdum causa cognita praetor statuere debeat, in cuius partis possessionem is, cui non caueatur, mitti debeat.
But it must be said that in larger houses too, the praetor, after examining the case, ought sometimes to determine into the possession of which part he to whom security is not given ought to be admitted.
§39.2.38.2Deducto ueteris parietis pretio, si quid amplius sit, aestimari debet, et si quid ex ueteri in nouum coniectum sit, deduci ex aestimatione oportet.
After deducting the value of the old wall, if there is any excess, it must be appraised, and if anything from the old wall has been incorporated into the new one, it ought to be deducted from the appraisal.