[ULPIANUS libro quinto fideicommissorum. ] §40.5.26.4Apparet igitur ex hoc rescripto, item eo quod a diuo Pio rescriptum diximus, noluisse eos moram libertati fortuitam nocere edito ex ea, cui fideicommissa libertas data est.
It is apparent, therefore, from this rescript, and likewise from that which we said was replied by the Divine Pius, that they did not wish an accidental delay to freedom to harm the offspring born of her to whom the trust-bequeathed freedom was given.
§40.5.26.5Non tamen si a substituto impuberis fideicommissa libertas data sit ancillae eaque uiuo impubere partum ediderit, uel si post tempus uel sub condicione libertatem acceperit et ante diem uel condicionem partum ediderit, ad libertatem partus perducetur, quia horum alia condicio est: non enim moram fortuitam, sed ex uoluntate testantis passi sunt.
However, if trust-bequeathed freedom has been given to a female slave by the substitute of a pupil, and she has given birth to offspring while the pupil was alive, or if she has received freedom after a time or under a condition and has given birth to offspring before the day or the condition, the offspring will not be led to freedom, because the situation of these is different: for they have suffered not an accidental delay, but one arising from the will of the testator.
§40.5.26.6Si pro non scripto habitus sit seruus alicui legatus, cui seruo per fideicommissum libertas adscripta est, quaestionis est, num fideicommissa libertas debeat intercidere et an, si seruus petat fideicommissam libertatem ab eo, penes quem remansisset pro non scripto habito legato quod erat relictum ei qui eum rogatus fuerat manumittere, uel si ipse seruus, ut supra dictum est, fuit legatus, an libertas non debeat intercidere.
If a slave bequeathed to someone, to which slave freedom was attached by trust-bequest, is held as not written, it is a question whether the trust-bequeathed freedom ought to lapse, and whether, if the slave requests the trust-bequeathed freedom from him with whom, because the legacy was held as not written, there remained what had been left to him who had been requested to manumit him, or if the slave himself, as was said above, was the legacy, the freedom ought not to lapse.
et putem debere dici fideicommissam libertatem saluam esse, licet ad eum nihil peruenerit, qui eum rogatus erat manumittere: cogetur igitur libertatem praestare is ad quem peruenit legatum, quia libertas fideicommissa nullum impedimentum pati debet.
And I think it should be said that the trust-bequeathed freedom is secure, although nothing reached him who was requested to manumit him; therefore, he to whom the legacy came will be compelled to grant freedom, because trust-bequeathed freedom ought to suffer no obstacle.
§40.5.26.7Subuentum libertatibus est senatus consulto, quod factum est temporibus diui Traiani Rubrio Gallo et Caelio Hispone consulibus in haec uerba: 'si hi, a quibus libertatem praestari oportet, euocati a praetore adesse noluis'sent, si causa cognita praetor pronuntiasset libertatem his deberi, eodem iure statum 'seruari, ac si directo manumissi essent'. §40.5.26.8Hoc senatus consultum ad eos pertinet, quibus ex causa fideicommissi libertas debeatur.
Assistance was given to freedoms by a senatusconsultum which was passed in the times of the Divine Trajan, in the consulship of Rubrius Gallus and Caelius Hispo, in these words: 'If those by whom it is proper that freedom be granted, having been summoned by the praetor, should refuse to appear, and if, after investigating the case, the praetor should declare that freedom is owed to them, their status is to be preserved by the same right as if they had been directly manumitted.' This senatusconsultum applies to those to whom freedom is owed by reason of a trust-bequest.
proinde si libertas non deberetur, obreptum tamen praetori est de libertate pronuntiatumque, ex hoc senatus consulto libertas non competit.
Accordingly, if freedom was not owed, but the praetor was nevertheless deceived and a declaration was made concerning freedom, freedom is not competent on the basis of this senatusconsultum.
et ita imperator noster cum patre suo rescripsit.
And our Emperor with his father wrote back to this effect.
§40.5.26.9Euocari autem a praetore oportet eos, qui fideicommissam libertatem debent: ceterum nisi fuerint euocati, cessat Rubrianum senatus consultum.
Moreover, those who owe the trust-bequeathed freedom must be summoned by the praetor; otherwise, unless they have been summoned, the Rubrian senatusconsultum ceases to apply.
proinde denuntiationibus et edictis litterisque euocandi sunt.
Therefore they must be summoned by notifications, edicts, and letters.
§40.5.26.10Hoc senatus consultum ad omnes pertinet latitantes, quos fideicommissam libertatem praestare oportet.
This senatusconsultum applies to all those who are hiding and who ought to grant trust-bequeathed freedom.
proinde siue heres rogatus siue quis alius, senatus consulto locus est: omnes enim omnino, qui deberent fideicommissam libertatem praestare, in ea causa sunt, ut ad senatus consultum pertineant.
Therefore, whether it is the requested heir or someone else, there is room for the senatusconsultum; for absolutely all who ought to grant trust-bequeathed freedom are in such a position that they are covered by the senatusconsultum.
§40.5.26.11Quare si heres quidem latitet, legatarius autem uel fideicommissarius, qui rogatus sit libertatem praestare, praesens sit, senatus consultum deficit et nihilo minus impedietur libertas: proponamus enim legatarium nondum dominium serui nactum esse.
Therefore, if the heir indeed hides, but the legatee or fideicommissary who has been requested to grant freedom is present, the senatusconsultum fails to apply, and nevertheless freedom will be impeded; for let us suppose that the legatee has not yet acquired ownership of the slave.