[IDEM libro sexagensimo ad edictum. ] §40.5.4.prErgo quamdiu incertum sit, utrum existat successor an non, cessabit constitutio: cum certum esse coeperit, tunc erit constitutioni locus.
[THE SAME, Book 60 on the Edict.] Therefore, as long as it remains uncertain whether there is a successor or not, the constitution will not apply; when it begins to be certain, then there will be room for the constitution.
§40.5.4.1Si is qui in integrum restitui potest abstinuerit se hereditate, an, quamdiu potest in integrum restitui, existimamus constitutionem cessare, quia non est certum ab intestato neminem successorem exstare? est tamen uerius admittendam constitutionem.
If he who can be restored to his original position has abstained from the inheritance, do we think that, as long as he can be restored, the constitution does not apply, because it is not certain that no successor exists on intestacy? It is, however, more correct to say that the constitution should be admitted.
§40.5.4.2Quid ergo, si post addictionem libertatium conseruandarum causa factam in integrum sit restitutus? utique non erit dicendum reuocari libertates, quae semel competierunt.
What then, if he has been restored to his original position after the award of property has been made for the sake of preserving liberties? Certainly, it must not be said that the liberties, which have once been acquired, are revoked.
§40.5.4.3Illud uideamus, utrum praesentes esse debent qui libertatem acceperunt an uero non: et cum inuitis illis possunt bona propter libertatem addici, utique etiam absentibus.
Let us consider this point, whether those who have received liberty must be present or indeed not; and since property can be awarded for the sake of liberty even against their will, surely it can also be awarded in their absence.
§40.5.4.4Quid ergo, si quidam praesentes sint, quidam absentes? uideamus, an etiam absentibus competat libertas.
What then, if some are present and others absent? Let us see whether liberty is acquired also by those who are absent.
et potest dici exemplo aditae hereditatis competere libertatem etiam absentibus.
And it can be said, on the analogy of an inheritance being entered upon, that liberty is acquired also by those who are absent.
§40.5.4.5Si ex die data sit libertas, an dies exspectandus sit? et puto exspectandum: ante ergo non addicentur.
If liberty has been given from a certain day, must that day be awaited? And I think it must be awaited; therefore, the property will not be awarded before then.
quid deinde, si sub condicione data sit libertas? et si quidem aliquae pure, aliquae sub condicione, utique addici statim possunt: si omnes sub condicione, quid consequens erit dicere? utrum exspectandum, ut condicio existat, an uero statim addicimus, tunc demum competitura libertate, si exstiterit condicio? quod magis erit probandum.
What next, if liberty has been given under a condition? And if indeed some are given unconditionally, and others under a condition, they can certainly be awarded immediately; but if all are under a condition, what will be the logical consequence to say? Must we wait for the condition to be fulfilled, or do we indeed award the property immediately, liberty being acquired only then, if the condition is fulfilled? The latter is rather to be approved.
addictis itaque bonis directae libertates pure datae statim competunt, ex die, cum dies uenerit, condicionales, cum condicio extiterit: nec erit ab re existimare etiam pendente condicione libertatium, licet omnes sub condicione datae sint, constitutionem locum habere: ubi enim libertatis spes est, ibi dicendum est uel modica data occasione, quod sine damno creditorum futurum est, addictionem admittendam.
Accordingly, when property is awarded, direct liberties given unconditionally are acquired immediately; those from a certain day, when the day arrives; those conditional, when the condition is fulfilled. Nor will it be out of place to think that, even while the condition of the liberties is pending, although all have been given under a condition, the constitution has place; for where there is a hope of liberty, there it must be said that even on a modest opportunity being given, which will be without loss to the creditors, the award should be admitted.
§40.5.4.6Si sub condicione dandorum decem libertas data sit, siue heredi dare iussus sit qui libertatem accepit siue non sit dictum cui, an dando ei cui bona addicenda sunt perueniat ad libertatem, quaeri potest: et magis est, ut ei dare debeat, cui bona addicta sint, quasi translata condicio uideatur.
If liberty has been given under the condition of giving ten, whether he who received liberty was ordered to give it to the heir, or it was not stated to whom, it can be asked whether, by giving it to him to whom the property is to be awarded, he arrives at liberty; and it is more correct that he must give it to him to whom the property has been awarded, as if the condition were deemed to be transferred.
certe si alii quam heredi dare iussus sit, ipsi, cui iussus est, dabit.
Certainly, if he was ordered to give it to someone other than the heir, he will give it to that very person to whom he was ordered.
§40.5.4.7Si qui fideicommissam libertatem acceperunt, non statim ubi addicta bona sunt liberi sunt, sed fideicommissam libertatem possunt consequi, hoc est manumittendi sunt ab eo, cui addicta bona sunt.
Those who have received a trust-bequeathed liberty are not free immediately when the property is awarded, but they can obtain the trust-bequeathed liberty, that is, they must be manumitted by him to whom the property has been awarded.
§40.5.4.8Addici ita demum bona uoluit, si idonee creditoribus cautum fuerit de solido, quod cuique debetur.
He wished the property to be awarded only if sufficient security was given to the creditors for the whole sum which is owed to each.
ergo cauendum est idonee.
Therefore, sufficient security must be given.
quid est idonee? satisdato utique aut pignoribus datis.
What is "sufficiently"? Certainly by providing security or by giving pledges.
sed si ei fides habita fuerit promittenti sine satisdatione, idonee cautum uidebitur.
But if credit has been given to the promisor without security, security will be deemed to have been sufficiently given.
§40.5.4.9Creditoribus caueri quemadmodum debet, utrum singulis an uero omnium nomine uni ab ipsis creato? et oportet officio iudicis constitui conuenire creditores unumque creare, cui caueatur omnium nomine.
How should security be given to the creditors, whether to individuals or indeed in the name of all to one chosen by them? And it is appropriate that it be decided by the office of the judge that the creditors come together and choose one to whom security is given in the name of all.
§40.5.4.10Illud uidendum: ante caueri debet creditoribus et sic addici bona, an uero sub condicione haec sunt addicenda, si fuerit cautum? et puto sic comprehendendum decreto 'si omnia ex constitutione diui Marci facta sint'. §40.5.4.11'De solido' utique sic accipiemus 'de sorte et usuris debitis'.
This must be considered: must security be given to the creditors beforehand and the property thus awarded, or indeed are they to be awarded under the condition "if security has been given"? And I think it should be formulated in the decree as follows: "if all things have been done in accordance with the constitution of the divine Marcus." "For the whole sum" we shall certainly understand as "for the principal and the interest owed."