[PAULUS libro duodecimo quaestionum. ] §40.13.4.prLicinnius Rufinus Iulio Paulo.
[PAULUS, in the twelfth book of Questions.] Licinnius Rufinus to Iulius Paulus.
Is cui fideicommissa libertas debebatur post uicensimum annum ueniri se passus est: quaero, denegandum sit ei ad libertatem proclamare.
A person to whom freedom under a trust was owed allowed himself to be sold after his twentieth year: I ask whether permission to claim freedom should be denied to him.
mouet me exemplum cuiusuis liberi hominis: nam et si consecutus esset libertatem, si se uendidisset, denegaretur ei ad libertatem proclamare, nec debet meliori loco intellegi, quod in seruitute constitutus passus est se uenum dari, quam si esset libertatem consecutus.
The example of any free man influences me; for even if he had obtained freedom, if he had sold himself, permission to claim freedom would be denied to him, and it ought not to be understood that he who was placed in slavery and allowed himself to be sold is in a better position than if he had obtained freedom.
sed e contrario mouet me, quod in hoc, de quo quaeritur, uenditio constitit et est qui ueneat, in libero autem homine neque uenditio constitit et nihil est quod ueneat.
But, on the other hand, I am influenced by the fact that in this case which is in question, a sale has taken place and there is someone to be sold, whereas in the case of a free man no sale has taken place and there is nothing to be sold.
peto itaque plenissime instruas.
Therefore, I beg you to instruct me most fully.
respondit: uenditio quidem tam serui quam liberi contrahi potest et stipulatio de euictione contrahitur: non enim de eo loquimur, qui sciens liberum emit: nam aduersus hunc nec ad libertatem proclamatio denegatur.
He replied: A sale indeed can be contracted of a slave as well as of a free man, and a stipulation against eviction is contracted; for we are not speaking of one who knowingly buys a free man, since against him even the claim for freedom is not denied.
sed is, qui adhuc seruus est, etiam inuitus ueniri potest, quamuis et ipse in eo malus sit, quod de condicione sua dissimulat, cum in sua potestate habeat, ut statim ad libertatem perueniat.
But he who is still a slave can be sold even against his will, although he himself is also in bad faith in this, that he conceals his status, when he has it in his own power to attain freedom immediately.
quod quidem non potest ei imputari, cui nondum libertas debetur.
This indeed cannot be imputed to one to whom freedom is not yet owed.
pone statuliberum passum se uenum dari: nemo dicturus est superueniente condicione, quae non fuit in eius potestate, libertatis petitionem ei denegandam.
Suppose that a slave conditionally free has allowed himself to be sold: no one will say that, upon the subsequent occurrence of the condition which was not in his power, the petition for freedom should be denied to him.
idem puto, etiamsi in ipsius potestate fuit condicio.
I think the same, even if the condition was in his own power.
sed in proposito magis probandum est, ut denegetur ei libertatis petitio, qui potuit petere libertatem et maluit se uenum dari, quia indignus est auxilio praetoris fideicommissarii.
But in the case proposed, it is rather to be approved that the petition for freedom be denied to him who was able to petition for freedom and preferred to allow himself to be sold, because he is unworthy of the assistance of the praetor in charge of trusts.