[ULPIANUS libro quinto fideicommissorum. ] §40.5.30.prCum quasi absente quodam decretum fuisset interpositum ex iusta causa cum abesse, is autem mortuus iam esset, imperator noster rescripsit in heredis personam transferendum decretum eoque loco ius eius esse, quasi hunc ipsum ex eadem causa abesse pronuntiasset.
[ULPIANUS libro quinto fideicommissorum.] When a decree had been interposed on the ground of a just cause that a certain person was absent as it were, but he was already dead, our Emperor replied by rescript that the decree was to be transferred to the person of the heir, and that his legal position in that respect was just as if he had pronounced this very person to be absent for the same cause.
§40.5.30.1Si infans sit inter eos, qui manumittere debent, senatus censuit, cum unius aetas impedierit, ut liberi liberaeque sint hi, quibus libertates ex causa fideicommissi praestari oportet.
If an infant is among those who ought to manumit, the senate decreed that, when the age of one person is a hindrance, those to whom freedom ought to be performed under a trust shall be free, both male and female.
§40.5.30.2Hoc idem erit dicendum et si solus sit heres institutus qui fari non potest.
This same thing must be said even if he who cannot speak is instituted as sole heir.
§40.5.30.3Si uero pupillus tutorem habet isque nolit ad libertatem praestandam auctor esse, adeo non debet impedimento esse neque pupillo, ut libertos non habeat, neque libertati, ut diui fratres rescripserint ex causa fideicommissi libertatem praestari debere seruo, perinde atque si ab ipso pupillo tutore auctore manumissus esset.
But if a pupil has a tutor, and the latter is unwilling to authorize the performing of freedom, it ought so little to be a hindrance either to the pupil (so that he would not have freedmen) or to freedom, with the result that, as the deified brothers replied in a rescript, freedom ought to be performed to the slave under a trust, just as if he had been manumitted by the pupil himself with the authority of the tutor.
§40.5.30.4Quicumque igitur casus inciderit, quo is qui fari non potest fideicommissae libertati subiectus est, accommodabimus mentem senatus consulti, quae etiam ad heredem infantem rogati trahenda est.
Therefore, whatever case may occur, in which he who cannot speak is subject to the duty of performing trusted freedom, we shall adapt the intention of the senate's decree, which must also be extended to the infant heir of the person requested.
§40.5.30.5Adeundus est autem etiam ex hac causa praetor, praesertim cum rescripto diui Pii effectum est, ut, si quidam ex rogatis praesentes sunt, alii latitent, alii ex causa absint, intercedente infantis persona non omnium libertus efficiatur, sed tantum infantis et eorum qui ex iusta causa absunt uel etiam praesentium.
Moreover, the praetor must also be approached for this reason, especially since it was effected by a rescript of the deified Pius that, if some of those requested are present, others are in hiding, and others are absent for a cause, with the person of an infant intervening, the slave does not become the freedman of all of them, but only of the infant and of those who are absent for a just cause or also of those who are present.
§40.5.30.6Si plures heredes sunt instituti et inter eos qui fari non potest, sed non ipse rogatus sit seruum manumittere, non oportere intercidere libertatem ob hoc, quod coheredibus suis uendere eum infans non possit: et exstat quidem senatus consultum Uitrasianum, sed et diuus Pius Cassio Dextro rescripsit ita rem explicari, ut partes seruorum, quibus per fideicommissum libertas data est, iusto pretio aestimentur atque ita seruus ab his qui rogati sunt manumittatur.
If several heirs have been instituted, and among them is one who cannot speak, but he himself was not requested to manumit the slave, the freedom ought not to be lost on the ground that the infant cannot sell him to his co-heirs; and indeed, the Vitrasian decree of the senate exists, but the deified Pius also replied by rescript to Cassius Dexter that the matter should be solved in such a way that the shares of the slaves, to whom freedom was given under a trust, are valued at a just price, and thus the slave is manumitted by those who were requested.
hi autem, qui eos manumiscerunt, pretii nomine perinde fratribus et coheredibus suis obligati erunt, atque si ob cam rem ex iudicati causa cum his agi possit.
Furthermore, those who manumitted them shall be obligated to their brothers and co-heirs in the name of the price, just as if they could be sued by them under an action on a judgment for that matter.
§40.5.30.7In furiosi persona diuus Pius rescripsit fideicommissam libertatem non impediri sub condicione scripti heredis, quem compotem mentis non esse adfirmatur.
In the case of an insane person, the deified Pius replied by rescript that trusted freedom is not hindered under the condition of an instituted heir who is asserted not to be of sound mind.
igitur si constiterit ei recte datam per fideicommissum libertatem, decretum interponetur, quo id ipsum complectatur, ad exemplum infantis.
Therefore, if it is established that freedom under a trust was rightly given to him, a decree shall be interposed which includes this very thing, following the example of the infant.
§40.5.30.8Ergo et in muto et in surdo subuenietur.
Therefore, relief shall also be given in the case of a mute and a deaf person.
§40.5.30.9Sed et si quis sine herede uel alio successore decesserit qui fideicommissam libertatem praestare debebat, adito praetore libertatem praestandam esse censuit senatus.
But even if anyone who ought to perform trusted freedom has died without an heir or other successor, the senate decreed that freedom must be performed upon approaching the praetor.
§40.5.30.10Sed et si suus heres se abstinuerit, libertati fideicommissae per senatus consultum subuentum est, tametsi non est sine herede, qui suum heredem habet licet abstinentem se.
Moreover, even if a self-successor (suus heres) has abstained from the inheritance, relief has been given to the trusted freedom by a decree of the senate, although he who has a self-successor, even if abstaining, is not without an heir.
§40.5.30.11Idem dicendum et si minor uiginti quinque annis adierit hereditatem eius, qui libertatem fideicommissam debebat, et in integrum sit restitutus abstinendi causa.
This same thing must be said if a person under twenty-five years of age has entered upon the inheritance of one who owed trusted freedom, and has been restored to his original condition (in integrum restitutus) for the purpose of abstaining.
§40.5.30.12Quaerendum est autem, cuius libertus iste fit: ex constitutione enim seruo libertas perinde competit, atque si ex testamento libertatem consecutus esset.
But it must be asked whose freedman this person becomes; for under the constitution, freedom belongs to the slave just as if he had obtained freedom from a testament.
erit igitur libertus orcinus, non eius qui fideicommissam libertatem debebat.
Therefore, he will be a freedman of Orcus (libertus orcinus), and not of the person who owed the trusted freedom.
§40.5.30.13Si alter sine successore decesserit, alter ex iusta causa absit, extat rescriptum diuorum Marci et Ueri perinde dicentium eum ad libertatem peruenturum, ac si ab eo qui sine successore decessit et ab eo qui ex iusta causa abesset ad libertatem ut oportuit perductus esset.
If one has died without a successor and the other is absent for a just cause, there exists a rescript of the deified Marcus and Verus stating that he will arrive at freedom just as if he had been led to freedom, as was proper, by both the one who died without a successor and the one who was absent for a just cause.
§40.5.30.14Eleganter quaeri potest, cum heres sine successore decedit, utrum exspectari debet, donec certum sit heredem uel bonorum possessorem non extaturum, an uero etiam dum incertum est (forte deliberante herede scripto) possit ad libertatem peruenire: et melius est exspectari oportere, quoad certum esse coeperit successorem non extaturum.
It can be elegantly asked, when an heir dies without a successor, whether one ought to wait until it is certain that no heir or possessor of goods (bonorum possessor) will appear, or indeed whether he can arrive at freedom even while it is uncertain (perhaps while the instituted heir is deliberating); and it is better that one ought to wait until it begins to be certain that no successor will appear.
§40.5.30.15Imperator noster Antoninus rescripsit eum cui fideicommissa libertas debetur, sine libertate aliquid ex testamento heredis accipere posse.
Our Emperor Antoninus replied by rescript that he to whom trusted freedom is owed can receive something from the testament of the heir without obtaining freedom.
§40.5.30.16Diuus etiam Marcus rescripsit fideicommissas libertates neque aetate neque condicione neque mora non praestantium tardiusue reddentium corrumpi aut in deteriorem statum perduci.
The deified Marcus also replied by rescript that trusted freedoms are neither corrupted nor brought into a worse condition by the age, condition, or delay of those who do not perform them or perform them too slowly.
§40.5.30.17Quamquam ex irritis codicillis libertates non debeantur, attamen si heres hos codicillos ratos habuit et ex his quaedam praestitit et seruos praestandae fideicommissae libertatis gratia in libertate morari uoluit, ad iustam libertatem eos peruenisse rescriptum imperatoris nostri et diui patris eius declarat.
Although freedoms are not owed under void codicils, nevertheless, if the heir held these codicils as valid and performed certain things from them, and wished the slaves to remain in freedom for the sake of performing the trusted freedom, the rescript of our Emperor and his deified father declares that they have arrived at lawful freedom.