[ULPIANUS libro quadragensimo tertio ad Sabinum. ] §39.2.40.prEx damni infecti stipulatione non oportet infinitam uel inmoderatam aestimationem fieri, ut puta ob tectoria et ob picturas: licet enim in haec magna erogatio facta est, attamen ex damni infecti stipulatione moderatam aestimationem faciendam, quia honestus modus seruandus est, non inmoderata cuiusque luxuria subsequenda.
[ULPIANUS in the forty-third book on Sabinus.] Under the stipulation for damage not yet done, an infinite or immoderate valuation ought not to be made, for instance, on account of plastering and paintings; for although a large expenditure has been made on these, nevertheless a moderate valuation must be made under the stipulation for damage not yet done, because a reasonable limit must be observed, and the immoderate luxury of each individual must not be indulged.
§39.2.40.1Quotiens communis parietis uitio quid accidit, socius socio nihil praestare debet, cum communis rei uitio contigerit.
Whenever anything happens through a defect in a common wall, one partner ought to guarantee nothing to the other, since it occurred through a defect in a common thing.
quod si, quia alter eum presserat uel onerauerat, idcirco damnum contigit, consequens est dicere detrimentum hoc, quod beneficio eius contingit, ipsum sarcire debere.
But if, because one of them had pressed upon or overloaded it, damage occurred for that reason, it is logical to say that he himself ought to make good this loss, which occurred through his own act.
quod si aequaliter utriusque oneribus pressus decidit, rectissime Sabinus scripsit, parem utriusque causam esse.
But if it fell, being equally pressed by the burdens of both, Sabinus wrote most correctly that the case of both is equal.
sed si alter plures uel pretiosiores res amiserit, melius est dicere, quia ambo onera imposuerunt, neutri aduersus alterum competere actionem.
But if one has lost more or more valuable things, it is better to say that, because both imposed burdens, an action is available to neither against the other.
§39.2.40.2Quotiens ex damni infecti plures agunt, quia in eadem re damnum passi sunt, id est in aedibus, non debet unusquisque eorum in solidum agere, sed in partem experiri: neque enim damnum, quod pluribus datum est, unicuique in solidum datum est, sed in partem datum esse uidetur.
Whenever several persons bring an action on account of damage not yet done, because they have suffered damage in the same thing, that is, in a house, each of them ought not to sue for the whole, but to try for his share; for the damage which was done to several was not done to each for the whole, but is deemed to have been done in part.
et ideo unicuique in partem competere actionem Iulianus scripsit.
And therefore Julian wrote that an action is available to each for his share.
§39.2.40.3Item si plurium sint aedes, quae damnosae imminent, utrum aduersus unumquemque dominorum in solidum competit an in partem? et scripsit Iulianus, quod et Sabinus probat, pro dominicis partibus conueniri eos oportere.
Likewise, if a house which threatens damage belongs to several owners, is an action available against each of the owners for the whole, or for his share? And Julian wrote, which Sabinus also approves, that they ought to be sued in proportion to their ownership shares.
§39.2.40.4Si plures domini sint aedium, qui damni infecti sibi prospicere uolunt, nec quisquam eis damni infecti caueat, mittendi omnes in possessionem erunt et quidem aequalibus partibus, quamuis diuersas portiones dominii habuerint: et ita Pomponius scribit.
If there are several owners of a house who wish to protect themselves against damage not yet done, and no one gives them security for damage not yet done, they must all be admitted into possession, and indeed in equal shares, although they may have held different shares of ownership; and Pomponius writes to this effect.