[AFRICANUS libro nono quaestionum. ] §39.2.44.prCum postulassem, ut mihi damni infecti promitteres, noluisti et priusquam praetor adiretur, aedes tuae corruerunt et damnum mihi dederunt: potius esse ait, ut nihil noui praetor constituere debeat et mea culpa damnum sim passus, qui tardius experiri coeperim.
[AFRICANUS in the ninth book of Questions.] When I had demanded that you promise me against damage not yet done, you refused, and before the praetor was approached, your building collapsed and caused me damage: he says that it is preferable that the praetor ought to decree nothing new, and that I suffered the damage through my own fault, since I began to take action too late.
at si cum praetor ut promitteres decreuisset et te non promittente ire me in possessionem iussisset et prius, quam eo uenissem, corruerunt, perinde omnia seruanda esse existimauit, atque si posteaquam in possessionem uenissem damnum datum esset.
But if, when the praetor had decreed that you should promise, and because you did not promise, he had ordered me to go into possession, and before I came there, it collapsed, he thought that everything should be maintained just as if the damage had been caused after I had entered into possession.
§39.2.44.1Damni infecti nomine in possessionem missus possidendo dominium cepit, deinde creditor eas aedes pignori sibi obligatas persequi uult.
A person who was put in possession on account of damage not yet done acquired ownership by possessing; thereafter, a creditor wishes to pursue this building which had been pledged to him.
non sine ratione dicetur, nisi impensas, quas in refectionem fecerim, mihi praestare sit paratus, inhibendam aduersus me persecutionem.
It will be said, not without reason, that unless he is prepared to pay me the expenses which I incurred in repairs, his action against me must be barred.
cur ergo non emptori quoque id tribuendum est, si forte quis insulam pigneratam emerit? non recte haec inter se comparabuntur, quando is qui emit sua uoluntate negotium gerat ideoque diligentius a uenditore sibi cauere et possit et debeat: quod non aeque et de eo, cui damni infecti non promittatur, dici potest.
Why then should this not also be granted to a buyer, if by chance someone has bought a pledged apartment building? These cases cannot rightly be compared with each other, since he who buys conducts a transaction of his own free will, and therefore both can and ought to secure himself more diligently from the seller; which cannot equally be said of him to whom a promise against damage not yet done is not made.