[ALFENUS UARUS libro secundo digestorum. ] §39.2.43.prDamni infecti quidam uicino repromisserat: ex eius aedificio tegulae uento deiectae ceciderant in uicini tegulas easque fregerant: quaesitum est, an aliquid praestari oportet.
[ALFENUS VARUS in the second book of the Digests.] A certain person had promised a neighbor against damage not yet done; tiles blown off from his building by the wind had fallen onto the neighbor's tiles and broken them. The question was whether anything ought to be paid.
respondit, si uitio aedificii et infirmitate factum esset, debere praestari: sed si tanta uis uenti fuisset, ut quamuis firma aedificia conuelleret, non debere.
He answered that if it had occurred due to a defect and weakness in the building, payment ought to be made; but if the force of the wind had been so great as to tear away even firm buildings, it ought not.
et quod in stipulatione est 'siue quid ibi ruet', non uideri. sibi ruere, quod aut uento aut omnino aliqua ui extrinsecus admota caderet, sed quod ipsum per se concideret.
And as for the clause in the stipulation "or if anything there shall collapse," it did not seem to him that what fell either by the wind or by any force applied from the outside "collapsed," but rather what fell down of its own accord.
§39.2.43.1Cum parietem communem aedificare quis cum uicino uellet, priusquam ueterem demoliret, damni infecti uicino repromisit adeoque restipulatus est: posteaquam paries sublatus esset et habitatores ex uicinis cenaculis emigrassent, uicinus ab eo mercedem, quam habitatores non redderent, petere uult: quaesitum est, an recte petet.
When someone wished to build a common wall with his neighbor, before demolishing the old one, he promised the neighbor against damage not yet done and likewise entered into a counter-stipulation. After the wall had been removed and the tenants had moved out of the neighboring apartments, the neighbor wished to claim from him the rent which the tenants did not pay. The question was whether he would claim rightly.
respondit non oportuisse eos, cum communem parietem aedificarent, inter se repromittere neque ullo modo alterum ab altero cogi potuisse: sed si maxime repromitterent, tamen non oportuisse amplius quam partis dimidiae, quo amplius ne extrario quidem quisquam, cum parietem communem aedificaret, repromittere deberet.
He answered that when they built a common wall, they ought not to have made mutual promises, nor could one have been forced by the other in any way. But even if they did make promises to the utmost, still they ought not to have promised for more than a half share, beyond which no one, even to a stranger, when building a common wall, ought to promise.
sed quoniam iam in totum repromisissent, omne, quod detrimenti ex mercede uicinus fecisset, praestaturum.
But since they had already promised for the whole, he must make good all the loss that the neighbor had suffered from the rent.
§39.2.43.2Idem consulebat, possetne, quod ob eam rem dedisset, rursus repetere, quoniam restipulatus esset a uicino, si quid ob eam rem, quod ibi aedificatum esset, sibi damnum datum esset, id reddi, cum et ipsam hanc pecuniam, quam daret, propter illud opus perderet.
The same person consulted whether he could claim back what he had given on that account, since he had counter-stipulated from his neighbor that if any damage should be caused to him on account of what was built there, it should be restored, since he was losing this very money which he paid because of that work.
respondit non posse propterea quia non operis uitio, sed ex stipulatione id amitteret.
He answered that he could not, because he lost it not through a defect in the work, but from the stipulation.