[UENULEIUS libro sexto interdictorum. ] §42.8.25.prSi fraudator fideiussori suo scienti acceptum tulerit, si et reus non ignorauerit, uterque tenebitur, si minus, is qui scierit.
If a defrauder grants a release to his surety who knows of the fraud, and if the principal debtor also was not ignorant of it, both will be held liable; if not, only the one who knew.
si tamen ille, cui acceptum factum est, soluendo non sit, uidendum est, an in reum, etiamsi ignorauerit, actio danda sit, quia ex donatione capit.
If, however, the person to whom the release was granted is insolvent, we must see whether an action should be given against the principal debtor, even if he was ignorant, because he gains from a gift.
contra si reo scienti acceptum latum sit, fideiussor quoque, si et ipse scierit, tenebitur: si uero ignorauerit, numquid non aeque actio in eum dari debeat, quoniam magis detrimentum non patitur, quam lucrum faciat? in duobus autem reis par utriusque causa est.
On the other hand, if a release is granted to a principal debtor who knows of the fraud, the surety also, if he himself also knew, will be held liable; but if he was ignorant, should not an action equally be denied against him, since he is avoiding a loss rather than making a gain? But in the case of two principal debtors, the condition of both is equal.
§42.8.25.1Si a socero fraudatore sciens gener accepit dotem, tenebitur hac actione et, si restituerit eam, desinit dotem habere: nec quicquam emancipatae diuortio facto restituturum Labeo ait, quia haec actio rei restituendae gratia, non poenae nomine daretur ideoque absolui solet reus, si restituerit.
If a son-in-law knowingly receives a dowry from his defrauding father-in-law, he will be held liable under this action, and if he restores it, he ceases to have the dowry; Labeo says that he does not have to restore anything to his emancipated wife upon divorce, because this action is given for the purpose of restoring the thing, not by way of penalty, and therefore the defendant is usually acquitted if he restores it.
sed si priusquam creditores cum eo experirentur, reddiderit filiae dotem iudicio dotis nomine conuentus, nihilo minus eum hac actione teneri Labeo ait nec ullum regressum habiturum ad mulierem: sin uero sine iudice, uidendum, an ulla repetitio competat ei.
But Labeo says that if, before the creditors could sue him, he has returned the dowry to his daughter when sued in an action for the dowry, he is nonetheless held liable under this action, and will have no recourse against the woman. But if he did so without a judicial order, we must see whether any recovery is available to him.
quod si is ignorauerit, filia autem scierit, tenebitur filia: si uero uterque scierit, uterque tenebitur.
But if he was ignorant and the daughter knew, the daughter will be held liable; if indeed both knew, both will be held liable.
at si neuter scierit, quidam existimant nihilo minus in filiam dandam actionem, quia intellegitur quasi ex donatione aliquid ad eam peruenisse, aut certe cauere eam debere, quod consecuta fuerit se restituturam: in maritum autem, qui ignorauerit, non dandam actionem, non magis quam in creditorem, qui a fraudatore quod ei deberetur acceperit, cum is indotatam uxorem ducturus non fuerit.
But if neither knew, some think that the action should nonetheless be given against the daughter, because she is understood to have received something as if by gift, or at least she ought to give security that she will restore what she obtained; but against the husband who was ignorant, the action should not be given, any more than against a creditor who received what was due to him from a defrauder, since he would not have married a wife without a dowry.
§42.8.25.2Item si extraneus filiae familiae nomine fraudandi causa dotem dederit, tenebitur maritus, si scierit: aeque mulier: nec minus et pater, si non ignorauerit, ita ut caueat, si ad se dos peruenerit, restitui eam.
Likewise, if a stranger has given a dowry on behalf of a daughter of a family for the purpose of defrauding, the husband will be held liable if he knew; equally the woman; and no less the father, if he was not ignorant, provided that he gives security that, if the dowry comes to him, it will be restored.
§42.8.25.3Si procurator ignorante domino, cum sciret debitorem eius fraudandi cepisse consilium, iussit seruo ab eo accipere, hac actione ipse tenebitur, non dominus.
If an agent, while the principal was ignorant, knowing that his debtor had formed a plan to defraud, ordered a slave to receive payment from him, he himself will be held liable under this action, not the principal.
§42.8.25.4Non solum autem ipsam rem alienatam restitui oportet, sed et fructus, qui alienationis tempore terrae cohaerent, quia in bonis fraudatoris fuerunt, item eos, qui post inchoatum iudicium recepti sint: medio autem tempore perceptos in restitutionem non uenire.
It is necessary to restore not only the alienated thing itself, but also the fruits which at the time of alienation were clinging to the soil, because they were among the goods of the defrauder; likewise those which were gathered after the commencement of the suit; but those gathered in the intermediate time do not come into the restoration.
item partum ancillae per fraudem alienatae medio tempore editum in restitutionem non uenire, quia in bonis non fuerit.
Likewise, the offspring of a female slave alienated through fraud, born in the intermediate time, does not come into the restoration, because it was not among the goods.
§42.8.25.5Proculus ait, si mulier post alienationem conceperit et antequam ageretur, pepererit, nullam esse dubitationem, quin partus restitui non debeat: si uero, cum alienaretur, praegnas fuerit, posse dici partum quoque restitui oportere.
Proculus says that if the woman conceived after the alienation and gave birth before the action was brought, there is no doubt that the offspring ought not to be restored; but if she was pregnant when she was alienated, it can be said that the offspring also ought to be restored.
§42.8.25.6Fructus autem fundo cohaesisse non satis intellegere se Labeo ait, utrum dumtaxat qui maturi an etiam qui inmaturi fuerint, praetor significet: ceterum etiamsi de his senserit, qui maturi fuerint, nihilo magis possessionem restitui oportere.
Labeo says he does not fully understand what the praetor means by fruits clinging to the land, whether only those that were ripe or also those that were unripe; moreover, even if the praetor meant those that were ripe, the possession of them ought to be restored none the more.
nam cum fundus alienaretur, quod ad eum fructusque eius attineret, unam quandam rem fuisse, id est fundum, cuius omnis generis alienationem fructus sequi: nec eum, qui hiberno habuerit fundum centum, si sub tempus messis uindemiaeue fructus eius uendere possit decem, idcirco duas res, id est fundum centum et fructus decem eum habere intellegendum, sed unam, id est fundum centum, sicut is quoque unam rem haberet, qui separatim solum aedium uendere possit.
For when land is alienated, as far as it and its fruits are concerned, it was one single thing, namely the land, whose fruits follow every kind of alienation. Nor is a person who has land worth one hundred in winter to be understood as having two things—namely, the land worth one hundred and the fruits worth ten—if near harvest or vintage time he can sell its fruits for ten, but rather one thing, namely, the land worth one hundred, just as he also would have one thing who can sell the site of a house separately.
H §42.8.25.7aec actio etiam in ipsum fraudatorem datur, licet Mela non putabat in fraudatorem eam dandam, quia nulla actio in eum ex ante gesto post bonorum uenditionem daretur et iniquum esset actionem dari in eum, cui bona ablata essent.
This action is also given against the defrauder himself, although Mela did not think it should be given against the defrauder, because no action is given against him based on a prior transaction after the sale of his goods, and it would be unjust for an action to be given against him from whom his goods have been taken.
si uero quaedam disperdidisset, si nulla ratione reciperari possent, nihilo minus actio in eum dabitur et praetor non tam emolumentum actionis intueri uidetur in eo, qui exutus est bonis, quam poenam.
But if he has wasted certain things, and they cannot be recovered by any means, the action will nonetheless be given against him, and the praetor seems to look not so much to the benefit of the action in the case of one who has been stripped of his goods, as to the penalty.