[IDEM libro uicensimo septimo ad Sabinum. ] §40.7.3.9Sed et si argento subtracto uel rebus aliis distractis nummos corrasos dederit, perueniet ad libertatem, quamuis, si nummos subtractos dedisset, ad libertatem non perueniret: nec enim uidetur dedisse, sed magis reddidisse.
But also if he should give scraped-together coins after stealing silver or selling other things, he will arrive at freedom, although, if he had given the stolen coins themselves, he would not arrive at freedom; for he is not deemed to have given, but rather to have returned them.
sed nec si aliis subripuerit nummos et heredi dederit, ad libertatem perueniet, quia auelli nummi ei qui accepit possunt.
But neither if he should steal coins from others and give them to the heir, will he arrive at freedom, because the coins can be taken away from the one who received them.
plane si sic consumpti fuerint, ut nullo casu auelli possint, conpetet libertas.
Clearly, if they have been consumed in such a way that they cannot be taken away in any case, freedom will be competent.
§40.7.3.10Non solum autem si heres moram facit libertati, sed et si tutor uel curator uel procurator uel alius quiuis, in cuius persona condicioni parendum est, libertatem competere dicemus.
But we shall say that freedom is competent not only if the heir causes delay to the freedom, but also if a tutor, or a curator, or a procurator, or anyone else in whose person the condition is to be complied with, does so.
et sane hoc iure utimur in statulibero, ut sufficiat per eum non stare, quo minus condicioni pareat.
And indeed we use this rule in the case of a statuliber, that it is sufficient that it does not stand through him that he does not comply with the condition.
§40.7.3.11Si quis heredi in diebus triginta proximis mortis testatoris dare iussus fuerit, deinde heres tardius adierit, Trebatius et Labeo, si sine dolo malo tardius adierit, dantem eum intra dies triginta aditae hereditatis ad libertatem peruenire: quae sententia uera est.
If anyone was ordered to give to the heir within thirty days closest to the death of the testator, and then the heir should enter upon the inheritance later, Trebatius and Labeo say that, if he entered later without dolus malus, the slave arrives at freedom by giving within thirty days of the entry upon the inheritance; which opinion is true.
sed quid si data opera traxit? an ob id statim, ut adita est hereditas, ad libertatem perueniat? quid enim si tunc habuit, post aditam habere desiit? sed et hic expleta uidetur condicio, quoniam per eum non steterit, quo minus impleatur.
But what if he delayed it on purpose? Does he, on that account, arrive at freedom immediately when the inheritance is entered upon? For what if he had the money then, but ceased to have it after the entry? But here too the condition is deemed to have been fulfilled, since it did not stand through him that it was not fulfilled.
§40.7.3.12Si quis sic acceperit libertatem 'cum decem dare poterit, liber esto', Trebatius ait, licet habuerit decem uel idoneus fuerit ad adquirendum et conseruandum peculium, tamen non alias ad libertatem peruenturum, nisi dederit aut per eum non steterit, quo minus det: quae sententia uera est.
If anyone received freedom in this way: "when he can give ten, let him be free," Trebatius says that even if he had ten or was fit to acquire and preserve a peculium, yet he will not arrive at freedom otherwise than if he gives, or if it does not stand through him that he does not give; which opinion is true.
§40.7.3.13Stichus annua bima trima die denos aureos heredi si dederit, liber esse iussus est.
Stichus was ordered to be free if he should give ten aurei to the heir on a yearly, two-year, and three-year term.
si prima pensione stetit per heredem, quo minus acciperet decem, exspectandam esse trimam pensionem placet, quia et tempus adiectum est et adhuc supersunt duae pensiones.
If at the first payment it stood through the heir that he did not receive the ten, it is approved that the three-year term must be awaited, because both a time has been added and there are still two payments remaining.
sed si eadem decem sola habeat, quae optulit ad primam pensionem, an etiam ad sequentem quoque prosit, si offerat? et an et ad tertiam, si sequens pensio non sit accepta? et puto sufficere haec eadem et paenitentiae heredi locum non esse: quod et Pomponius probat.
But if he has only the same ten which he offered at the first payment, does it also profit for the following payment as well, if he offers it? And does it also profit for the third, if the following payment was not accepted? And I think these same coins are sufficient and there is no room for repentance for the heir; which Pomponius also approves.
§40.7.3.14Quid si seruus, qui annua bima trima die iussus est dena dare, tota simul offerat heredi non exspectata die? uel decem primo anno datis secundo anno uiginti optulit? benignius est eum in libertatem peruenire, cum utriusque prouidentia infertur et serui, quatenus maturius in libertatem perueniat, et heredis, quatenus dilatione interempta ilico accipiat, quod post tempus consequi poterat.
What if a slave, who was ordered to give ten yearly, on a two-year, and on a three-year term, should offer all of them together to the heir without waiting for the term? Or, having given ten in the first year, offered twenty in the second year? It is more benign that he should arrive at freedom, since the foresight of both is brought in: of the slave, in so far as he arrives at freedom more maturely, and of the heir, in so far as the delay is destroyed and he immediately receives what he could have obtained after some time.
§40.7.3.15Si ita sit libertas seruo data, si quinquennio heredi seruierit, deinde eum heres manumiserit, statim liber fit, quasi per eum sit effectum, quo minus ei seruiat: quamuis si non pateretur eum sibi seruire, non statim perueniret, quam si quinquennium praeterisset.
If freedom was given to a slave in this way: "if he serves the heir for five years," and then the heir manumits him, he immediately becomes free, as if it was effected through the heir that he did not serve him; although if he merely did not allow him to serve him, he would not arrive at freedom immediately, but only when the five years had passed.
ratio huius rei euidens est: manumissus enim amplius seruire non potest: at is quem quis non patitur sibi seruire, postea pati potest intra quinquennii tempus.
The reason for this thing is evident: for a manumitted person can no longer serve, but he whom one does not allow to serve him can later be allowed within the five-year period.
atquin iam quinquennio ei seruire non potest: sed uel minus potest.
Yet he can no longer serve him for five years, nor even for less.
§40.7.3.16Item Iulianus libro sexto decimo digestorum scripsit, si Arethusae libertas ita sit data, si tres seruos pepererit, et per heredem steterit, quo minus pepererit (puta quod ei medicamentum dedisset, ne conciperet), statim liberam futuram esse: quid enim exspectamus? idemque et si egisset heres, ut abortum faceret, quia et uno utero potuit tres edere.
Likewise Julian wrote in the sixteenth book of the Digests that if freedom was given to Arethusa in this way: "if she gives birth to three slaves," and it stood through the heir that she did not give birth (for instance, because he had given her medicine so that she would not conceive), she will be free immediately; for what are we waiting for? And the same holds if the heir had acted so that she would abort, because she could have brought forth three from one womb.
§40.7.3.17Item si heredi seruire iussum statuliberum heres uendidit et tradidit, credo statim ad libertatem peruenire.
Likewise, if the heir sold and delivered a statuliber who was ordered to serve the heir, I believe that he immediately arrives at freedom.