[ULPIANUS libro septuagensimo tertio ad edictum. ] §42.8.10.prAit praetor: 'Quae Lucius Titius fraudandi causa sciente te in bonis, quibus de ea re agitur, fecit: ea illis, si eo nomine, quo de agitur, actio ei ex edicto meo competere esseue oportet, ei, si non plus quam annus est, cum de ea re, qua de agitur, experiundi potestas est, restituas.
[ULPIANUS, On the Edict, Book 73] The praetor says: "Whatever Lucius Titius did for the purpose of defrauding, with your knowledge, in respect of the property which is the subject of this action: restore those things to them, if an action on that account which is under discussion belongs or ought to belong to him under my edict, or to him, if it is not more than one year since the opportunity of bringing an action concerning that matter arose.
interdum causa cognita et si scientia non sit, in factum actionem permittam'. §42.8.10.1Ita demum reuocatur, quod fraudandorum creditorum causa factum est, si euentum fraus habuit, scilicet si hi creditores, quorum fraudandorum causa fecit, bona ipsius uendiderunt.
Sometimes, after a hearing of the case, even if there is no knowledge, I will grant an action on the facts." What was done for the purpose of defrauding creditors is only revoked if the fraud produced a result, that is, if those creditors, for the purpose of defrauding whom he did it, sold his property.
ceterum si illos dimisit, quorum fraudandorum causa fecit, et alios sortitus est, si quidem simpliciter dimissis prioribus, quos fraudare uoluit, alios postea sortitus est, cessat reuocatio: si autem horum pecunia, quos fraudare noluit, priores dimisit, quos fraudare uoluit, Marcellus dicit reuocationi locum fore.
But if he discharged those whom he did it to defraud, and acquired others, if indeed, after simply discharging the former creditors whom he wished to defraud, he subsequently acquired others, revocation does not apply; if, however, he discharged the former creditors whom he wished to defraud with the money of those whom he did not wish to defraud, Marcellus says that there will be ground for revocation.
secundum hanc distinctionem et ab imperatore Seuero et Antonino rescriptum est eoque iure utimur.
A rescript was issued by the Emperors Severus and Antoninus in accordance with this distinction, and we follow this rule of law.
§42.8.10.2Quod ait praetor 'sciente', sic accipimus 'te conscio et fraudem participante': non enim si simpliciter scio illum creditores habere, hoc sufficit ad contendendum teneri eum in factum actione, sed si particeps fraudis est.
When the praetor says "with your knowledge," we understand this as "you being aware and participating in the fraud"; for if I simply know that he has creditors, this is not sufficient to contend that he is liable to an action on the facts, but it is so if he is a participant in the fraud.
§42.8.10.3Si quis particeps quidem fraudis non fuit, uerumtamen uendente debitore testato conuentus est a creditoribus, ne emeret, an in factum actione teneatur, si comparauerit? et magis est, ut teneri debeat: non enim caret fraude, qui conuentus testato perseuerat.
If someone was not indeed a participant in the fraud, but nevertheless, while the debtor was selling, was formally warned by the creditors in the presence of witnesses not to buy, will he be liable to an action on the facts if he purchases? The better view is that he ought to be held liable; for a person who persists after being formally warned in the presence of witnesses is not free from fraud.
§42.8.10.4Alias autem qui scit aliquem creditores habere, si cum eo contrahat simpliciter sine fraudis conscientia, non uidetur hac actione teneri.
Otherwise, however, a person who knows that someone has creditors, if he contracts with him simply without consciousness of fraud, is not deemed to be liable under this action.
§42.8.10.5Ait praetor 'sciente te', id est eo, qui conuenietur hac actione.
The praetor says "with your knowledge," that is, of the person who will be sued under this action.
quid ergo, si forte tutor pupilli scit, ipse pupillus ignorauit? uideamus, an actioni locus sit, ut scientia tutoris noceat: idem et in curatore furiosi et adulescentis.
What then, if perhaps the tutor of a pupillus knows, but the pupillus himself is ignorant? Let us see whether there is ground for the action, so that the knowledge of the tutor causes harm; the same applies to the curator of a madman and of a youth.
et putem hactenus istis nocere conscientiam tutorum siue curatorum, quatenus quid ad eos peruenit.
And I should think that the knowledge of tutors or curators harms those persons only so far as something has reached them.
§42.8.10.6Praeterea sciendum est posse quaeri quod dicitur in fraudem creditorum alienatum reuocari posse, si idem sint creditores: et si unus creditor sit ex illis, qui fraudati sunt, siue solus tunc fuit siue, cum ceteris satisfactum est, hic solus remansit, probandum esse adhuc actioni fore locum.
Furthermore, it must be known that the question can be raised whether, when it is said that what was alienated in fraud of creditors can be revoked, the creditors must be the same; and if there is only one creditor among those who were defrauded, whether he was the only one at that time, or, when the others were satisfied, he alone remained, it should be approved that there will still be ground for the action.
§42.8.10.7Illud certe sufficit, et si unum scit creditorem fraudari, ceteros ignorauit, fore locum actioni.
This certainly suffices, that even if he knows that one creditor is being defrauded, and was ignorant of the others, there will be ground for the action.
§42.8.10.8Quid ergo, si ei, quem quis scit, satisfactum est? numquid deficiat actio, quia qui supersunt, non sunt fraudati? et hoc puto probandum: non tamen si dicat aliquis: 'offero, quod debetur ei, quem scio creditorem', audiendus erit, ut actionem eludat.
What then, if satisfaction has been made to the one whom a person knows to be a creditor? Does the action fail because those who remain were not defrauded? I think this also should be approved; however, if someone should say: "I offer what is owed to him whom I know to be a creditor," he is not to be heard so that he may evade the action.
§42.8.10.9Si fraudator heredem habuit et heredis bona uenierint, non est in bonis quibus de agitur factum et ideo cessat haec actio.
If the defrauder had an heir and the property of the heir has been sold, what was done was not done in respect of the assets under discussion, and therefore this action ceases to apply.
§42.8.10.10Si quid in fraudem creditorum fecerit filius, qui se poterat abstinere, et in integrum sit restitutus, quod se miscuerat, uel si quis fecit uoluntarius etiam uel per aetatem uel quam aliam causam iustam in integrum meruit restitutionem, dicendum erit utilem actionem competere.
If a son who was able to abstain did something in fraud of creditors and has been restored to his former position in respect of his having meddled, or if a voluntary heir also, either because of age or some other just cause, has merited restoration to his former position and did something, it must be said that a useful action is available.
idem et in seruo necessario.
The same applies to a necessary slave.
sane cum illa distinctione hoc admittendum esse Labeo scribit, ut, si quidem protinus bona uendiderunt creditores uel absentibus uel paciscentibus creditoribus se necessarius miscuit, utriusque fraus reuocetur, id est testatoris et ipsius: si uero passi sunt necessarium creditores et quasi in creditum habuerunt nomen eius uel dulcitudine usurarum uel qua alia ratione secuti sunt, dicendum est nihil reuocari ex his, quae testator alienauit.
Indeed, Labeo writes that this must be admitted with the following distinction: if indeed the creditors immediately sold the goods, or the necessary heir meddled while the creditors were absent or making an agreement, the fraud of both is revoked, that is, of the testator and of himself; if, however, the creditors tolerated the necessary heir and held his name as it were on credit, either pursued by the sweetness of interest or for some other reason, it must be said that nothing is revoked of those things which the testator alienated.