[IDEM libro sexagensimo secundo ad edictum. ] §42.5.9.prPraetor ait: 'Si quis, cum in possessione bonorum esset, quod eo nomine fructus ceperit, ei, ad quem ea res pertinet, non restituat: siue, quod impensae sine dolo malo fecerit, ei non praestabitur: siue dolo malo eius deterior causa possessionis facta esse dicetur, de ea re iudicium in factum dabo'. §42.5.9.1Quod de fructibus ait, etiam de ceteris, quaecumque ex re debitoris peruenerunt, intellegendum est.
[The Same, on the Edict, book 62] The praetor says: 'If anyone, when he was in possession of the goods, does not restore what fruit he has gathered on that account to the person to whom that thing belongs; or if what expenses he has incurred without malicious intent are not paid to him; or if by his malicious intent the condition of the possession is said to have been made worse, I will grant an action on the facts concerning that matter.' What he says of fruits is also to be understood of all other things which have come from the debtor's property.
et sane debuit hoc ita esse: quid enim, si ex compromisso uel alio casu poenam consecutus est? nam eam poenam, quam consecutus est, praestare debet.
And indeed, it ought to be so; for what if he has obtained a penalty from a compromise or some other circumstance? For he ought to hand over that penalty which he has obtained.
§42.5.9.2Quod ait praetor 'siue quod impensae nomine sine dolo fecit, ei non praestabitur', hoc eo spectat, ut, si quid ipse erogauit creditor, si modo sine dolo malo erogauit, hoc ei praestetur: sufficit igitur sine dolo erogasse, etiamsi nihil profuit erogatio eius rei debitori.
The praetor's saying 'or if what he spent without malice under the heading of expense is not paid to him' has this in view: that if the creditor himself has expended anything, provided only he expended it without malicious intent, this should be paid to him. It is therefore sufficient to have expended it without malice, even if the expenditure of that thing was of no benefit to the debtor.
H §42.5.9.3is uerbis 'ad quem ea res pertinet' etiam curator bonis distrahendis datus continebitur et ipse debitor, si contigerit, ne bona eius ueneant.
By these words 'the person to whom that thing belongs,' the curator appointed for the sale of the goods will also be included, and the debtor himself, if it should happen that his goods are not sold.
et ipsi itaque creditori aduersus hos dabitur actio, quos enumerauimus, siue quid in fructibus percipiendis erogauit siue in familia alenda curandaue praediis fulciendis uel reficiendis uel damno infecto promittendo uel seruo noxali iudicio defenso, si modo non magis eum expedit dedere quam retinere: quod si dedere expedit, consequens erit repetere eum non debere.
And therefore an action will be granted to the creditor himself against those whom we have listed, whether he has expended anything in gathering the fruits, or in feeding and caring for the household of slaves, in supporting or repairing buildings, in promising security against threatened damage, or in defending a slave in a noxal action, provided only that it is not more advantageous to surrender him than to retain him; but if it is advantageous to surrender him, the consequence will be that he ought not to recover his expenses.
§42.5.9.4Generaliter etiam dicendum est, quidquid impendit in rem, si modo sine dolo malo impendit, repetere eum posse: nam negotiorum gestorum agere non magis potest quam si socius commune aedificium fulsit, quia hic quoque creditor commune, non alienum negotium gessisse uidetur.
Generally, it must also be said that whatever he expended on the property, provided only he expended it without malicious intent, he can recover; for he can no more bring an action for unauthorized agency than if a co-owner supported a common building, because here too the creditor is deemed to have managed a common affair, not the affair of another.
§42.5.9.5Est praeterea quaesitum, si deteriora praedia facta fuerint sine dolo malo creditoris uel iura eorum amissa uel aedificia diruta uel exusta, item familiae pecorumque acta cura non sit aut possessio alii tradita, sine dolo tamen malo, an teneatur.
Furthermore, it has been questioned whether, if lands have been made worse without malicious intent of the creditor, or their rights lost, or buildings demolished or burnt down, likewise if care has not been taken of the slaves and cattle, or possession transferred to another, yet without malicious intent, he is liable.
et apparet eum non teneri, quia dolo malo caret, eritque melior eius condicio quam in pignore creditoris, qui non tantum dolum malum, uerum culpam quoque debet.
And it appears that he is not liable, because he is free from malicious intent, and his position will be better than that of a pledge creditor, who owes not only responsibility for malicious intent, but also for negligence.
eadem causa est curatoris bonorum: nam et is tenetur ut creditores.
The case of a curator of goods is the same, for he also is held liable in the same way as the creditors.
§42.5.9.6In eum quoque, qui neque locauit fructum praedii neque uendidit, in factum actionem dat praetor et in hoc condemnabitur, quanto minus propter hoc perceptum est, quia neque uendidit neque locauit.
Against him also who has neither leased nor sold the fruit of the land, the praetor grants an action on the facts, and he will be condemned in this, by how much less was gathered on this account because he neither sold nor leased.
ceterum si tantum perceptum est, quantum perciperetur, si locatus uel distractus fructus esset, nihil ei imputabitur.
But if as much was gathered as would have been gathered if the fruit had been leased or sold, nothing will be imputed to him.
praestat autem per id tantum temporis, quo in possessionem fuit uel ipse uel iussu eius alius, quoad inde de possessione discessum est: nam neque hoc imputatur creditori, cur in possessionem non uenerit, neque illud, cur de possessione decesserit, cum uoluntarium et suum potius negotium creditor gerat.
Moreover, he answers only for that period of time during which he himself, or another by his order, was in possession, until there was a departure from possession: for neither is this imputed to the creditor, why he did not enter into possession, nor that, why he departed from possession, since the creditor manages a voluntary affair and rather his own.
aestimatio autem fit, quantum interest eius qui experitur. H
The valuation, moreover, is made according to how much it is of interest to the person who sues.
§42.5.9.7ae actiones neque temporariae sunt et tam heredibus quam in heredes dabuntur ceterosque successores.
These actions are not temporary, and will be granted both to heirs and against heirs and other successors.
§42.5.9.8Si possessionis causa deterior facta esse dicetur dolo eius, qui in possessionem missus sit, actio in eum ex dolo datur, quae neque post annum neque in heredes ceterosque successores dabitur, cum ex delicto oriatur poenaeque nomine concipiatur,
If the condition of the possession is said to have been made worse by the malicious intent of him who was put into possession, an action based on malicious intent is granted against him, which will be granted neither after a year nor against heirs and other successors, since it arises from a delict and is framed under the heading of a penalty.