[ULPIANUS libro quarto decimo ad edictum. ] §4.9.3.prEt ita de facto uectorum etiam Pomponius libro trigensimo quarto scribit.
[ULPIANUS in his fourteenth book on the Edict.] And Pomponius also writes thus in his thirty-fourth book concerning the act of passengers.
idem ait, etiamsi nondum sint res in nauem receptae, sed in litore perierint, quas semel recepit, periculum ad eum pertinere.
He says the same, that even if the things have not yet been received into the ship, but have perished on the shore, the risk belongs to him, provided he has once received them.
§4.9.3.1Ait praetor: 'nisi restituent, in eos iudicium dabo'. ex hoc edicto in factum actio proficiscitur.
The praetor says: 'Unless they restore, I will grant an action against them.' From this edict an action on the facts arises.
sed an sit necessaria, uidendum; quia agi ciuili actione ex hac causa poterit: si quidem merces interuenerit, ex locato uel conducto: sed si tota nauis locata sit, qui conduxit ex conducto etiam de rebus quae desunt agere potest: si uero res perferendas nauta conduxit, ex locato conuenietur: sed si gratis res susceptae sint, ait Pomponius depositi agi potuisse.
But we must see whether it is necessary; because an action can be brought from this cause by a civil action: for if indeed a price has intervened, from leasing or hiring; but if the whole ship was leased, he who hired can sue also for things which are missing by the action on hiring; if, however, the sailor undertook things to be carried, he will be sued by the action on leasing; but if the things were undertaken gratuitously, Pomponius says that an action on deposit could have been brought.
miratur igitur, cur honoraria actio sit inducta, cum sint ciuiles: nisi forte, inquit, ideo, ut innotesceret praetor curam agere reprimendae improbitatis hoc genus hominum: et quia in locato conducto culpa, in deposito dolus dumtaxat praestatur, at hoc edicto omnimodo qui receperit tenetur, etiam si sine culpa eius res periit uel damnum datum est, nisi si quid damno fatali contingit.
He wonders, therefore, why an honorary action was introduced, since there are civil actions; unless perhaps, he says, for this reason, so that it might become known that the praetor takes care to repress the dishonesty of this class of men; and because in leasing and hiring fault is made good, in deposit only malice, but by this edict he who has received is held liable in every way, even if the thing has perished or damage has been done without his fault, unless something happens by fatal damage.
inde Labeo scribit, si quid naufragio aut per uim piratarum perierit, non esse iniquum exceptionem ei dari.
Hence Labeo writes that if anything has perished by shipwreck or by the force of pirates, it is not unjust that an exception be granted to him.
idem erit dicendum et si in stabulo aut in caupona uis maior contigerit.
The same must be said also if superior force has occurred in a stable or in an inn.
§4.9.3.2Eodem modo tenentur caupones et stabularii, quo exercentes negotium suum recipiunt: ceterum si extra negotium receperunt, non tenebuntur.
Innkeepers and stablekeepers are held liable in the same manner, in which, carrying on their business, they receive things; but if they have received them outside their business, they will not be held liable.
§4.9.3.3Si filius familias aut seruus receperit et uoluntas patris domini interuenit, in solidum erit conueniendus.
If a son-in-power or a slave has received them, and the consent of the father or master has intervened, he must be sued for the whole amount.
item si seruus exercitoris subripuit uel damnum dedit, noxalis actio cessabit, quia ob receptum suo nomine dominus conuenitur.
Likewise, if a slave of a ship-operator has stolen or done damage, a noxal action will cease, because the master is sued in his own name on account of the receipt.
sin uero sine uoluntate exerceant, de peculio dabitur.
But if they carry on the business without his consent, an action will be granted to the extent of the peculium.
§4.9.3.4Haec autem rei persecutionem continet, ut Pomponius ait, et ideo et in heredem et perpetuo datur.
Moreover, this action contains a pursuit of the thing, as Pomponius says, and therefore it is granted both against the heir and perpetually.
§4.9.3.5Nouissime uidendum, an eiusdem rei nomine et de recepto honoraria actione et furti agendum sit: et Pomponius dubitat: sed magis est, ut uel officio iudicis uel doli exceptione alterutra esse contentus debeat.
Lastly, we must see whether we should sue on account of the same thing both by the honorary action on receipt and by the action for theft; and Pomponius doubts; but it is more correct that he ought to be content with either one, either by the office of the judge or by the exception of fraud.