[ULPIANUS libro septuagensimo tertio ad edictum. ] §42.8.10.11Si impubes patri heres extiterit eiusque mortui bona ueneant, separatione impetrata utriusque fraus erit reuocanda, pupilli uel etiam tutoris, item curatoris. §42.8.10.12Si, cum in diem deberetur, fraudator praesens soluerit, dicendum erit in eo, quod sensi commodum in repraesentatione, in factum actioni locum fore: nam praetor fraudem intellegit etiam in tempore fieri. §42.8.10.13Si cui solutum quidem non fuerit, sed in uetus creditum pignus acceperit, hac actione tenebitur, ut est saepissime constitutum. §42.8.10.14Si, cum mulier fraudandorum creditorum consilium inisset, marito suo eidemque debitori in fraudem creditorum acceptum debitum fecerit dotis constituendae causa, locum habet haec actio et per hanc omnis pecunia, quam maritus debuerat, exigitur nec mulier de dote habet actionem: neque enim dos in fraudem creditorum constituenda est: et hoc certo certius est et saepissime constitutum.
If an impubes becomes heir to his father and the deceased's goods are sold, if separation has been obtained, the fraud of both must be revoked, of the pupillus or also of the tutor, and likewise of the curator.\n If, when a debt was due on a future date, the defrauder paid it immediately, it must be said that there will be ground for an action on the facts in respect of the advantage experienced in the advance payment; for the praetor understands that fraud is committed also in respect of time.\n If payment indeed was not made to someone, but he received a pledge for an old debt, he will be liable under this action, as has very frequently been established.\n If, when a woman had entered into a plan to defraud creditors, she discharged by acceptilatio the debt of her husband, who was also her debtor, in fraud of creditors for the purpose of constituting a dowry, this action has ground, and through it all the money which the husband had owed is demanded, and the woman has no action for the dowry; for a dowry ought not to be constituted in fraud of creditors; and this is more certain than certainty itself and has very frequently been established.
exitus autem actionis erit, ut stipulatio, quae accepta facta fuerat, ex integro interponatur. §42.8.10.15Per hanc actionem et usus fructus et huiusmodi stipulatio: 'in annos singulos dena dari spondes?' exigi potest. §42.8.10.16Si debitorem meum et complurium creditorum consecutus essem fugientem secum ferentem pecuniam et abstulissem ei id quod mihi debeatur, placet Iuliani sententia dicentis multum interesse, antequam in possessionem bonorum eius creditores mittantur, hoc factum sit an postea: si ante, cessare in factum actionem, si postea, huic locum fore. §42.8.10.17Si ex constitutione diui Marci bona sint addicta alicui libertatium conseruandarum causa, dicendum erit actionem cessare: ita enim succedunt, ut rata sint, quae pater familias gesserat. §42.8.10.18Annus huius in factum actionis computabitur ex die uenditionis bonorum. §42.8.10.19Per hanc actionem res restitui debet cum sua scilicet causa. §42.8.10.20Et fructus, non tantum qui percepti sunt, uerum etiam hi, qui percipi potuerunt a fraudatore, ueniunt, sed cum aliquo modo, scilicet ut sumptus facti deducantur: nam arbitrio iudicis non prius cogendus est rem restituere, quam si impensas necessarias consequatur: idemque erit probandum et si quis alios sumptus ex uoluntate fideiussorum creditorumque fecerit. §42.8.10.21Partum quoque in hanc actionem uenire puto uerius esse. §42.8.10.22Praeterea generaliter sciendum est ex hac actione restitutionem fieri oportere in pristinum statum, siue res fuerunt siue obligationes, ut perinde omnia reuocentur, ac si liberatio facta non esset.
Moreover, the outcome of the action will be that the stipulation which had been discharged by acceptilatio is entered into anew.\n Through this action, both a usufruct and a stipulation of this kind: "Do you promise that ten denarii be given every year?" can be demanded.\n If I had caught up with a debtor of mine and of several creditors who was fleeing and carrying money with him, and I had taken from him what was owed to me, the opinion of Julian is approved, who says that it makes a great difference whether this was done before the creditors are put into possession of his goods or afterwards: if before, the action on the facts does not apply; if after, there will be ground for it.\n If, under a constitution of the divine Marcus, goods have been awarded to someone for the purpose of preserving liberties, it must be said that the action does not apply; for they succeed in such a way that what the paterfamilias had done remains valid.\n The year for this action on the facts will be computed from the day of the sale of the goods.\n Through this action, the thing must be restored, naturally with its accessions.\n And fruits, not only those which have been gathered, but also those which could have been gathered by the defrauder, are included, but with a certain qualification, namely, that the expenses incurred are deducted; for by the discretion of the judge, he is not to be compelled to restore the thing until he recovers his necessary expenses; and the same must be approved also if someone has incurred other expenses with the consent of the guarantors and creditors.\n I think it is more correct that offspring are also included in this action.\n Furthermore, it must be known generally that under this action restoration ought to be made to the pristine state, whether they were things or obligations, so that all things are revoked just as if the release had not been made.
propter quod etiam medii temporis commodum, quod quis consequeretur liberatione non facta, praestandum erit, dum usurae non praestentur, si in stipulatum deductae non fuerunt, aut si talis contractus fuit, in quo usurae deberi potuerunt etiam non deductae. §42.8.10.23Si condicionalis fuit obligatio, cum sua condicione, si in diem, cum sua die restauranda est.
On account of this, also the advantage of the intermediate time, which one would have obtained if the release had not been made, must be paid, provided that interest is not paid if it was not included in the stipulation, or unless it was such a contract in which interest could be owed even if not so included.\n If the obligation was conditional, it must be restored with its condition; if with a future date, with its date.
si tamen ea erat, cuius dies finitur, potest dici restitutionem intra id tempus posse postulari, quod tempus supererat obligationi, non utique intra annum. H §42.8.10.24aec actio post annum de eo, quod ad eum peruenit, aduersus quem actio mouetur, competit: iniquum enim praetor putauit in lucro morari eum, qui lucrum sensit ex fraude: idcirco lucrum ei extorquendum putauit.
If, however, it was such an obligation whose term was expiring, it can be said that restoration can be demanded within that time which remained for the obligation, and not necessarily within the year.\n This action, after a year, is available in respect of what has come to the person against whom the action is brought; for the praetor thought it unjust that he who experienced a gain from the fraud should remain in possession of that gain; therefore, he thought that the gain must be wrested from him.
siue igitur ipse fraudator sit, ad quem peruenit, siue alius quiuis, competit actio in id quod ad eum peruenit doloue malo eius factum est, quo minus perueniret. H §42.8.10.25aec actio heredi ceterisque successoribus competit: sed et in heredes similesque personas datur.
Whether, therefore, the person to whom it came is the defrauder himself or any other person, the action is available for that which has come to him, or which, by his fraud, was prevented from coming to him.\n This action is available to the heir and other successors; but it is also granted against heirs and similar persons.