[IDEM libro sexagensimo ad edictum. ] §40.5.4.12Hi, qui ad libertatem peruenerunt, quorum liberti fiant, constitutio ostendit, ut qui directam libertatem, orcini erunt liberti, nisi forte is qui addici sibi bona desiderat ita uelit addici, ut etiam hi, qui directam libertatem acceperunt, ipsius liberti fiant.
The constitution shows whose freedmen those who have arrived at liberty become, namely, that those who received direct liberty will be orcian freedmen, unless perhaps he who desires the property to be awarded to himself wishes it to be awarded in such a way that even those who received direct liberty become his own freedmen.
§40.5.4.13Qui autem uolunt ipsius liberti fieri, utrum manumittendi sint ab eo an uero ipsa addictione hoc comprehendendum hac condicione sibi addici bona, ut hi etiam, qui directam libertatem acceperunt, ipsius fiant liberti? et puto hoc esse probandum, ut ipsa addictione hoc comprehendatur: idque uerba quoque constitutionis admittunt.
But when they wish them to become their own freedmen, must they be manumitted by him, or indeed should this be included in the award itself, namely, that the property is awarded to him under this condition, that those also who received direct liberty become his own freedmen? And I think this should be approved, so that this is included in the award itself; and the words of the constitution also admit this.
§40.5.4.14Cum autem seruus libertatem nactus est, utique etiam tutelam eius habebit is cui bona addicta sunt.
Moreover, when a slave has acquired liberty, he to whom the property has been awarded will certainly also have the guardianship over him.
§40.5.4.15Si alienos seruos rogauerat heredem manumittere, utrum dicimus constitutionem locum habere an uero cessabit constitutio? magisque est, ut locus sit constitutioni: addictis enim bonis redimere et praestare libertatem cogitur a praetore.
If he had requested the heir to manumit the slaves of another, do we say that the constitution has place, or indeed will the constitution not apply? And it is more correct that there is place for the constitution; for when the property has been awarded, he is compelled by the praetor to buy them and provide their liberty.
§40.5.4.16Si non heres, sed legatarius rogatus fuerit manumittere, numquid cesset constitutio, quod legatis non debitis nec libertates possunt deberi? magisque est, ut idem fauor sit: omnibus enim generaliter uoluit libertatem praestare, quibus competeret, si hereditas adita fuisset.
If not the heir, but a legatee was requested to manumit, does the constitution not apply, because since legacies are not owed, neither can liberties be owed? But it is more correct that the same favor should exist; for he wished to provide liberty generally to all those to whom it would have belonged if the inheritance had been entered upon.
§40.5.4.17Eadem constitutio prospexit, ut, si fiscus bona admiserit, aeque libertates competant: ergo siue iacent bona fisco spernente siue adgnouerit, constitutio locum habet.
The same constitution provided that, if the treasury has accepted the property, liberties should equally be acquired; therefore, whether the property lies unclaimed with the treasury rejecting it, or whether it has accepted it, the constitution has place.
ceterum si alia ratione adgnoscat, apparet cessare debere constitutionem: quare et si caducis legionis bona delata sint, idem erit probandum.
But if it accepts it on some other ground, it is clear that the constitution must not apply; wherefore, even if the property has devolved as lapsed property of a legion, the same must be approved.
§40.5.4.18Item si minor uiginti annis dedit libertatem, dicemus non competere, nisi si fideicommissam: haec enim competeret, si modo potuit causam probare minor uiginti annis, si uiuus manumitteret.
Likewise, if a person under twenty years of age has given liberty, we shall say that it is not acquired, unless it is a trust-bequeathed liberty; for this would be acquired, provided that the person under twenty years of age could have proved the cause, had he manumitted while alive.
§40.5.4.19Si in fraudem creditorum libertas data sit ab eo, qui mortis tempore soluendo non est, an competat? et si quidem fiscus bona non adgnouerit, forte competet libertas, quia solidum creditoribus offertur: atquin si adita hereditas fuisset, non competeret.
If liberty has been given to the fraud of creditors by one who at the time of death is solvent-less, does it belong? And if indeed the treasury has not accepted the property, perhaps liberty will belong, because the full sum is offered to the creditors; yet if the inheritance had been entered upon, it would not belong.
certe si fiscus adgnouit hereditatem, facilius probabitur cessare libertatem, nisi si quis uerba constitutionis secutus dixerit ipsum sibi imputare debere, qui addici sibi hac condicione bona uoluit, ut libertates competant. si quis autem exemplum aditae hereditatis fuerit secutus, directae libertates non competent, si consilium et euentus fuerit fraudandorum creditorum: nec fideicommissae praestabuntur, si euentu fraudentur creditores.
Certainly, if the treasury has accepted the inheritance, it will be more easily proved that liberty does not apply, unless someone, following the words of the constitution, should say that he must impute it to himself, who wished the property to be awarded to himself under this condition, that liberties belong. But if anyone has followed the example of an entered inheritance, direct liberties will not belong if there was both the intention and the outcome of defrauding creditors; nor will trust-bequeathed liberties be provided if the creditors are defrauded by the outcome.
§40.5.4.20Si bona fuerint a fisco non adgnita eaque addicta libertatis conseruandae gratia, an possit fiscus postea adgnoscere? et magis est, ne possit.
If the property was not accepted by the treasury and was awarded for the sake of preserving liberty, can the treasury accept it afterwards? And it is more correct that it cannot.
plane si non certioratis praefectis aerario bona fuerunt libertatis conseruandae causa addicta, uidendum est, an constitutioni locus sit.
Clearly, if the property was awarded for the sake of preserving liberty without the prefects of the treasury being informed, we must see whether there is place for the constitution.
et si quidem talia fuerunt, ut adgnosci deberent, addictio cessat: si uero non fuerunt, addictioni locus est.
And if indeed it was of such a nature that it ought to be accepted, the award does not apply; but if it was not, there is place for the award.
§40.5.4.21Is autem cui bona addicta sunt bonorum possessori adsimilari debet et secundum hoc et iura sepulchrorum poterit habere.
Moreover, he to whom the property has been awarded must be assimilated to a possessor of goods, and in accordance with this, he will also be able to have the rights of tombs.
§40.5.4.22Item uideamus, an conueniri a creditoribus possit hereditariis actionibus an uero non nisi ex cautione quam interposuit? magisque est, ut non aliter conueniatur quam ex ea cautione quam interposuit.
Likewise, let us see whether he can be sued by the creditors by hereditary actions, or indeed not except on the security which he provided? And it is more correct that he is not sued otherwise than on that security which he provided.
§40.5.4.23Si duobus pluribusue addicta fuerint bona, et communem rem et communes libertos habebunt et secum familiae herciscundae iudicio experientur.
If the property has been awarded to two or more, they will have both a common property and common freedmen, and they will proceed among themselves by the action for dividing an inheritance.