[IDEM libro uicensimo septimo ad Sabinum. ] §40.7.3.prStatuliberos condicioni parere oportet, si nemo eos impediat et sit condicio possibilis.
[IDEM libro uicensimo septimo ad Sabinum.] ¦THE SAME in the twenty-seventh book on Sabinus.¦ It is proper for statuliberi to comply with the condition, if no one prevents them and the condition is possible.
§40.7.3.1Sed si in heredis persona iussus sit parere condicioni, quid dici debeat? si quidem paruit condicioni, statim liber est etiam inuito herede.
But if he is ordered to comply with the condition in the person of the heir, what should be said? If indeed he has complied with the condition, he is immediately free, even against the will of the heir.
quod si non patitur heres pareri (puta offert decem, quae dare iussus erat), procul dubio liber est, quia per heredem stare uidetur, quo minus condicionem impleat.
But if the heir does not allow the condition to be complied with (for instance, if he offers ten, which he was ordered to give), he is without doubt free, because it is deemed to be due to the heir that he does not fulfill the condition.
et parui refert, de peculio ei offerat an ab alio accepta: receptum est enim, ut seruus peculiares quoque nummos dando perueniat ad libertatem, siue ipsi heredi siue alii dare iussus est.
And it matters little whether he offers it from his peculium or received from another; for it has been accepted that a slave also arrives at freedom by giving money from his peculium, whether he was ordered to give it to the heir himself or to another.
§40.7.3.2Inde quaeritur, si forte debeatur pecunia huic seruo uel ab herede, quod in domini rationem plus erogauerat, uel ab extraneo, nec uelit heres debitorem conuenire uel statulibero soluere pecuniam: an debeat ad libertatem peruenire, quasi moram per heredem patiatur.
Hence it is asked, if by chance money is owed to this slave either by the heir, because he had spent more on the master's account, or by an outsider, and the heir does not wish to sue the debtor or pay the money to the statuliber: whether he ought to arrive at freedom, as if he suffers a delay through the heir.
et aut legatum huic statulibero fuit peculium aut non: si legatum peculium fuit, Seruius scribit moram eum libertatis passum ob hoc ipsum, quod ei aliquid ex ratione dominica deberetur nec ei ab herede praestaretur: quam sententiam et Labeo probat.
And either the peculium was bequeathed as a legacy to this statuliber, or it was not. If the peculium was bequeathed, Servius writes that he suffered a delay of his freedom for this very reason, that something was owed to him from the master's account and was not provided to him by the heir; which opinion Labeo also approves.
Idem Seruius probat et si in eo moram faciat heres, quod nolit exigere a debitoribus: nam peruenturum ad libertatem ait.
The same Servius approves even if the heir causes delay in this, that he does not wish to collect from the debtors; for he says that he will arrive at freedom.
mihi quoque uidetur uerum quod Seruius ait.
To me also, what Servius says seems true.
cum igitur ueram putemus sententiam Serui, uideamus, an et si non fuerit praelegatum peculium seruo, idem debeat dici: constat enim statuliberum de peculio posse dare uel ipsi heredi iussum uel alii: et si eum dare impediat, perueniet statuliber ad libertatem.
Since, therefore, we think the opinion of Servius is true, let us see whether the same ought to be said even if the peculium was not pre-bequeathed to the slave; for it is established that a statuliber can give from his peculium whether he is ordered to give to the heir himself or to another; and if he is prevented from giving, the statuliber will arrive at freedom.
denique etiam remedii loco hoc monstratur domino statuliberi, ut eum extraneo iussum dare prohibeat, ne et nummos perdat cum statulibero.
Finally, this is also shown as a remedy to the master of the statuliber, that he should forbid him when ordered to give to an outsider, lest he lose both the money and the statuliber.
proinde defendi potest et si non uult exigere uel ipse soluere, ut hic habeat, unde condicioni pareat, libertatem competere: et ita Cassius quoque scribit.
Therefore, it can be defended that even if he does not wish to collect or pay himself, so that this slave may have from where to comply with the condition, freedom is competent; and so Cassius also writes.
§40.7.3.3Non solum autem si dare iussum dare prohibeat, statuliber ad libertatem peruenit, uerum etiam si ascendere Capitolium iussum ascendere uetet, item si Capuae dare iussum Capuam ire prohibeat: nam qui prohibet seruum proficisci, intellegendus est impedire magis uelle libertatem quam operis serui uti.
But not only if he forbids one who is ordered to give from giving, does the statuliber arrive at freedom, but also if he forbids one who is ordered to ascend the Capitol from ascending, likewise if he prevents one who is ordered to give at Capua from going to Capua; for he who forbids a slave from departing is to be understood as wishing to hinder freedom rather than to use the slave's services.
§40.7.3.4Sed et si iussum coheredi dare non patiatur unus ex heredibus dare, aeque liber erit: sed is, cui iussus erat dare et liber esse, familiae erciscundae iudicio ab eo qui impedit consequetur, quod sua intererat prohibitum statuliberum non esse.
But also if one of the heirs does not allow him to give what he was ordered to give to a co-heir, he will equally be free; but he, to whom the slave was ordered to give and be free, will obtain by the action for division of an inheritance from the one who prevents him, that which was in his interest that the statuliber should not be forbidden.
§40.7.3.5Si decem iussus dare et liber esse quinque det, non peruenit ad libertatem, nisi totum det: interim igitur uindicare quinque nummos dominus eorum potest.
If he who was ordered to give ten and be free should give five, he does not arrive at freedom unless he gives the whole; in the meantime, therefore, their master can claim the five coins.
sed si residuum fuerit solutum, tunc etiam id alienatum, cuius ante dominium non erat translatum.
But if the remainder is paid, then even that whose ownership had not been transferred before is alienated.
ita pendebit praecedentis summae alienatio, sic tamen, ut non retro nummi fiant accipientis, sed tunc, cum residua summa fuerit exsoluta.
Thus the alienation of the preceding sum will remain in suspense, yet in such a way that the coins do not retroactively become the property of the recipient, but at the time when the remaining sum has been paid.
§40.7.3.6Si plus quam iussus erat dederit statuliber, puta decem iussus dare uiginti dedit, siue numerauit siue in sacculo dedit, peruenit ad libertatem et superfluum potest repetere.
If the statuliber should give more than he was ordered, for instance having been ordered to give ten he gave twenty, whether he counted them out or gave them in a purse, he arrives at freedom and can demand back the excess.
§40.7.3.7Si quis seruum iussum decem dare et liberum esse uendiderit sine peculio, utrum statim liber sit (quasi prohibitus uideatur de peculio dare hoc ipso, quod sine peculio distractus est) an uero cum fuerit prohibitus peculium tangere? et puto tunc demum liberum fore, cum uolens dare prohibeatur, non statim ubi ueniit.
If anyone should sell a slave who was ordered to give ten and be free without his peculium, is he immediately free (as if he seems to be forbidden to give from his peculium by the very fact that he was sold without his peculium) or rather when he is forbidden to touch the peculium? And I think he will be free only when he, wishing to give, is forbidden, and not immediately when he is sold.
§40.7.3.8Si quis seruum iussum decem dare et liberum esse operari prohibeat, uel si, quod ex operis suis meret, abstulerit ei heres, uel si, quod ex mercedibus suis coegit, heredi dederit, an ad libertatem perueniat? et puto, si quidem ex operis dederit uel undecumque dederit, ad libertatem peruenturum: quod si prohibeatur operari, non fore liberum, quia operari domino debet.
If anyone should forbid a slave who was ordered to give ten and be free to work, or if the heir should take away from him what he earns from his labor, or if he gave to the heir what he collected from his wages, does he arrive at freedom? And I think that, if indeed he gave from his labor or from anywhere else, he will arrive at freedom; but if he is forbidden to work, he will not be free, because he owes his labor to his master.
plane si ei ablata fuerit pecunia ex operis collecta, liberum fore arbitror, quia de peculio dare prohibetur.
Clearly, if the money collected from his labor is taken away from him, I judge that he will be free, because he is forbidden to give from his peculium.
sane si testator uel ex operis ut det iussit, prohibitum operari ad libertatem peruenturum non dubito.
Certainly, if the testator ordered him to give even from his labor, I do not doubt that when forbidden to work he will arrive at freedom.