[PAULUS libro undecimo ad edictum. ] §4.3.18.prArbitrio iudicis in hac quoque actione restitutio comprehenditur: et nisi fiat restitutio, sequitur condemnatio quanti ea res est.
[PAULUS libro undecimo ad edictum.] In this action as well, restitution is included in the arbitrator's decision of the judge; and unless restitution is made, a condemnation for the value of the matter follows.
ideo autem et hic et in metus causa actione certa quantitas non adicitur, ut possit per contumaciam suam tanti reus condemnari, quanti actor in litem iurauerit: sed officio iudicis debet in utraque actione taxatione iusiurandum refrenari.
Moreover, the reason why a fixed sum is not added both here and in the action on the ground of fear is so that the defendant, through his own obstinacy, may be condemned for as much as the plaintiff has sworn to in the lawsuit; but by the duty of the judge, the oath must be restrained in both actions by a limitation of the amount.
§4.3.18.1Non tamen semper in hoc iudicio arbitrio iudicis dandum est: quid enim si manifestum sit restitui non posse (ueluti si seruus dolo malo traditus defunctus sit) ideoque protinus condemnari debeat in id quod intersit actoris?
However, the opportunity for the judge's arbitrator's decision should not always be given in this trial; for what if it is obvious that restitution cannot be made (for example, if a slave delivered through malicious intent has died) and therefore a condemnation ought to be made immediately for the amount of the plaintiff's interest?
§4.3.18.2Si dominus proprietatis insulam, cuius usus fructus legatus erat, incenderit, non est de dolo actio, quoniam aliae ex hoc oriuntur actiones.
If the owner of the property has burned down an apartment building whose usufruct had been bequeathed, the action for fraud does not lie, because other actions arise from this.
§4.3.18.3De eo qui sciens commodasset pondera, ut uenditor emptori merces adpenderet, Trebatius de dolo dabat actionem.
Concerning one who knowingly lent weights so that the seller might weigh goods for the buyer, Trebatius used to grant an action for fraud.
atquin si maiora pondera commnodauit, id quod amplius mercis datum est repeti condictione potest, si minora, ut reliqua merx detur ex empto agi potest: nisi si ea condicione merx uenit, ut illis ponderibus traderetur, cum ille decipiendi causa adfirmasset se aequa pondera habere.
But if he lent heavier weights, that which was given in excess of the goods can be recovered by a condictio; if lighter weights, an action on purchase can be brought so that the remaining goods may be delivered; unless the goods were sold on the condition that they should be delivered by those weights, since he had affirmed for the purpose of deceiving that he had fair weights.
§4.3.18.4Dolo cuius effectum est, ut lis temporibus legitimis transactis pereat: Trebatius ait de dolo dandum iudicium, non ut arbitrio iudicis res restituatur, sed ut tantum actor consequatur, quanti eius interfuerit id non esse factum, ne aliter obseruantibus lex circumscribatur.
Where by someone's fraud it has been brought about that a lawsuit perishes due to the expiration of the lawful time: Trebatius says that an action for fraud should be granted, not so that the matter may be restored by the arbitrator's decision of the judge, but so that the plaintiff may obtain as much as it was to his interest that this had not been done, lest otherwise the law be evaded against those who observe it.
§4.3.18.5Si seruum, quem tu mihi promiseras, alius occiderit, de dolo malo actionem in eum dandam plerique recte putant, quia tu a me liberatus sis: ideoque legis Aquiliae actio tibi denegabitur.
If another person has killed a slave whom you had promised to me, most jurists rightly think that an action for fraud should be granted against him, because you have been released from your obligation to me; and therefore, the action under the Lex Aquilia will be denied to you.