[ULPIANUS libro quinto fideicommissorum. ] §40.5.24.14Plane si forte minus relictum est alicui, uerum creuit legatum ex aliqua causa, acquissimum erit tanti eum cogi redimere, quantum ad eum peruenit, nec causari debere, quod minus illi relictum sit, cum creuerit eius legatum per testamenti occasionem: nam et si ex mora fructus usuraeue fideicommisso accessissent, dicendum est libertatem praestandam.
Clearly, if by chance less was left to someone, but the legacy increased for some reason, it will be most equitable that he be compelled to redeem him for as much as reached him, and that he ought not to plead as an excuse that less was left to him, since his legacy increased through the occasion of the testament. For even if fruits or interest accrued to the trust due to delay, it must be said that freedom is to be granted.
§40.5.24.15Proinde et si serui pretium decreuit, dicendum est redimere cogendum.
Accordingly, even if the price of the slave has decreased, it must be said that he must be compelled to redeem him.
§40.5.24.16Quod si legatum sit imminutum, uidendum, an cogatur seruum manumittere qui sperauit legatum uberius consecuturum.
But if the legacy has been diminished, it must be seen whether he who hoped that he would obtain a more abundant legacy is compelled to manumit the slave.
et putem, si legatum refundere sit paratus, non esse cogendum, idcirco, quia alia contemplatione adgnouit legatum, quod ex inopinato deminutum est: parato igitur ei a legato recedere concedendum erit, nisi forte residuum legatum ad pretium sufficit.
And I should think that, if he is ready to return the legacy, he must not be compelled, for this reason, because he accepted the legacy under another expectation, which has been unexpectedly diminished; therefore, it must be allowed to him who is ready to renounce the legacy, unless by chance the remaining legacy is sufficient for the price.
§40.5.24.17Quid ergo, si plures seruos rogatus sit manumittere et ad quorundam pretium sufficiat id quod relictum est, ad omnium non sufficiat, an cogendus sit quosdam manumittere? et putem debere eum cogi uel eos, quorum pretium patitur, manumittere.
What then, if he was requested to manumit several slaves, and what was left is sufficient for the price of some but not sufficient for all, is he to be compelled to manumit some? And I should think he ought to be compelled to manumit at least those whose price the legacy allows.
quis ergo statuet, qui potius manumittitur? utrumne ipse legatarius eligat, quos manumittat, an heres a quo legatum est? et fortassis quis recte dixerit ordinem scripturae sequendum: quod si ordo non pareat, aut sortiri eos oportebit, ne aliquam ambitionis uel gratiae suspicionem praetor subeat, aut meritis cuiusque allegatis arbitrari eos oportet.
Who then shall determine who is to be manumitted in preference? Whether the legatee himself should choose whom he manumits, or the heir from whom the legacy was given? And perhaps someone might rightly say that the order of the writing must be followed; but if the order does not appear, either they must draw lots, lest the praetor incur any suspicion of bias or favoritism, or they must be decided by arbitration after the merits of each have been alleged.
§40.5.24.18Simili modo dicendum est et si redimere iussus sit libertatemque praestare nec pecunia quae legata est sufficiat ad redemptionem omnium, quibus libertas data est: nam et hic idem erit, quod supra probauimus.
In like manner, it must be said also if he has been ordered to redeem and grant freedom, and the money which was bequeathed is not sufficient for the redemption of all to whom freedom was given; for here too the same will apply as we approved above.
§40.5.24.19Si cui legatum sit relictum isque rogatus sit seruum proprium manumittere eique quod legatum est praestare, an fideicommissaria libertas praestanda sit? quosdam mouet, quia, si fuerit coactus ad libertatem praestandam, ex necessitate ad fideicommissi quoque praestationem erit cogendus: et sunt qui putant non esse cogendum.
If a legacy was left to someone, and he was requested to manumit his own slave and to perform to him that which was bequeathed, must the trust-freedom be granted? It causes concern to some, because if he is forced to grant freedom, he will of necessity also have to be compelled to the performance of the trust; and there are those who think he is not to be compelled.
nam et si mihi legatum fuisset relictum et id rogatus essem Titio restituere confestim et praeterea fideicommissam libertatem seruo meo praestare, sine dubio diceremus non esse me cogendum ad libertatis praestationem, quia nihil pretii nomine uideor accepisse.
For even if a legacy had been left to me, and I had been requested to restore it to Titius immediately, and in addition to grant trust-freedom to my slave, without doubt we would say that I am not to be compelled to the grant of freedom, because I seem to have received nothing by way of price.
plane si forte post tempus fuerit rogatus restituere sibi legatum relictum, dici potest propter medii temporis fructum cogendum eum manumittere, §40.5.24.20si rogatus quis alii fundum, cum morietur, alii centum praestare si tantum ex fructibus fundi perceperit, quantum est in fideicommisso, cogendum eum praestare.
Clearly, if by chance he was requested to restore after a period of time the legacy left to him, it can be said that on account of the fruits of the intermediate time he must be compelled to manumit, if anyone has been requested to restore a tract of land to one person when he dies, and to grant a hundred to another if he has perceived as much from the fruits of the land as is in the trust, he must be compelled to grant it.
sic fit, ut sit in pendenti fideicommissum pecuniarium et fideicommissae libertatis praestatio.
Thus it happens that the pecuniary trust and the performance of the trust-freedom are in suspense.
§40.5.24.21Quotiens autem fideicommissaria libertas relinquitur efficaciter, in ea causa est, ut neque alienatione neque usucapione extingui possit: ad quemcumque enim peruenerit is seruus, cui fideicommissa libertas relicta est, cogi eum manumittere: et ita est saepissime constitutum.
Whenever, moreover, trust-freedom is left effectively, it is in such a state that it can be extinguished neither by alienation nor by usucapion; for to whomsoever that slave reaches, to whom trust-freedom was left, he is compelled to manumit him, and this has been established very frequently.
cogetur igitur is, ad quem seruus peruenerit, fideicommissam libertatem praestare si hoc maluit is qui rogatus est: latius enim acceptum est, ut et si sub condicione fuit ei libertas relicta et pendente condicione alienatus sit, attamen cum sua causa alienetur.
Therefore, he to whom the slave has reached will be compelled to grant the trust-freedom, if he who was requested preferred this; for it has been accepted more broadly that even if freedom was left to him under a condition, and he was alienated while the condition was pending, nevertheless he is alienated with his status.
quod si nolit ab eo manumitti, sed potius ab eo uelit ad libertatem perduci, qui erat rogatus eum manumittere, audiri eum oportere diuus Hadrianus et diuus Pius rescripserunt.
But if he does not wish to be manumitted by him, but rather wishes to be brought to freedom by him who had been requested to manumit him, the divine Hadrian and the divine Pius answered by rescript that he ought to be heard.
quin immo et si iam manumissus est, uelit tamen potius eius libertus fieri, qui erat rogatus eum manumittere, audiendum eum diuus Pius rescripsit.
Nay, indeed, even if he has already been manumitted, yet wishes rather to become the freedman of him who had been requested to manumit him, the divine Pius answered by rescript that he must be heard.
sed et si ex persona manumissoris uel ex quacumque causa manumissus ostendere potest ius suum laedi manumissione uel etiam laesum, succurri ei ex his constitutionibus oportet, ne contra uoluntatem defuncti durior eius condicio constituatur.
But even if, on account of the person of the manumittor or for any other reason, the manumitted slave can show that his right is harmed by the manumission or has even been harmed, he must be relieved under these constitutions, lest, contrary to the will of the deceased, his condition be made harder.
plane si ea sit defuncti uoluntas, ut uel a quocumque manumitti uoluerit, dicendum est constitutiones supra scriptas cessare.
Clearly, if such was the will of the deceased, that he wished him to be manumitted even by anyone whomsoever, it must be said that the above-written constitutions cease to apply.