[ULPIANUS libro sexagensimo sexto ad edictum. ] §42.8.6.prQuod autem, cum possit aliquid quaerere, non id agit, ut adquirat, ad hoc edictum non pertinet: pertinet enim edictum ad deminuentes patrimonium suum, non ad eos, qui id agunt, ne locupletentur.
[ULPIANUS, On the Edict, Book 66] But where someone, although he could acquire something, does not act so as to acquire it, this does not pertain to this edict; for the edict pertains to those who diminish their patrimony, not to those who act so as not to be enriched.
§42.8.6.1Unde si quis ideo condicioni non paret, ne committatur stipulatio, in ea condicione est, ne faciat huic edicto locum.
Therefore, if anyone does not comply with a condition for the purpose of preventing a stipulation from taking effect, he is in such a position as not to give occasion for this edict.
§42.8.6.2Proinde et qui repudiauit hereditatem uel legitimam uel testamentariam, non est in ea causa, ut huic edicto locum faciat: noluit enim adquirere, non suum proprium patrimonium deminuit.
Accordingly, one who has renounced an inheritance, whether intestate or testamentary, is not in a position to give occasion to this edict; for he did not wish to acquire, and did not diminish his own proper patrimony.
§42.8.6.3Simili modo dicendum est et si filium suum emancipauit, ut suo arbitrio adeat hereditatem, cessare hoc edictum.
In like manner, it must be said that if he has emancipated his son so that the son may enter upon an inheritance at his own discretion, this edict does not apply.
§42.8.6.4Sed et illud probandum, si legatum repudiauit, cessare edictum, quod Iulianus quoque scribit.
But it must also be approved that if he has renounced a legacy, the edict does not apply, which Julian also writes.
§42.8.6.5Si seruum suum heredem institutum alienauit, ut iussu emptoris adeat, si quidem in uenditione nulla fraus est, sed in hereditate sit, cessat edictum, quia licuit ei etiam repudiare hereditatem: at si in ipsa serui alienatione fraus est, reuocabitur, quemadmodum si eum in fraudem manumississet.
If someone has alienated his slave who has been instituted heir, so that the slave may enter upon the inheritance by order of the buyer, then if indeed there is no fraud in the sale but there is in the inheritance, the edict does not apply, because he was also permitted to renounce the inheritance; but if there is fraud in the alienation of the slave itself, it will be revoked, just as if he had manumitted him to defraud.
§42.8.6.6Apud Labeonem scriptum est eum, qui suum recipiat, nullam uideri fraudem facere, hoc est eum, qui quod sibi debetur receperat: eum enim, quem praeses inuitum soluere cogat, impune non soluere iniquum esse: totum enim hoc edictum ad contractus pertinere, in quibus se praetor non interponit, ut puta pignora uenditionesque.
In the writings of Labeo it is written that he who recovers what is his own is not deemed to commit any fraud, that is, he who had received what was owed to him; for it would be unjust that one whom the governor compels to pay against his will should not pay with impunity; for this entire edict pertains to contracts in which the praetor does not interpose himself, such as pledges and sales.
§42.8.6.7Sciendum Iulianum scribere eoque iure nos uti, ut, qui debitam pecuniam recepit ante, quam bona debitoris possideantur, quamuis sciens prudensque soluendo non esse recipiat, non timere hoc edictum: sibi enim uigilauit.
It should be known that Julian writes, and we observe this rule of law, that he who has received money owed to him before the debtor's goods are possessed, although he receives it knowing and being aware that the debtor is insolvent, does not fear this edict; for he was vigilant on his own behalf.
qui uero post bona possessa debitum suum recepit, hunc in portionem uocandum exaequandumque ceteris creditoribus: neque enim debuit praeripere ceteris post bona possessa, cum iam par condicio omnium creditorum facta esset.
But he who has received his debt after the goods have been possessed must be called to a proportionate share and made equal to the other creditors; for he ought not to have snatched it away from the others after the goods were possessed, when the condition of all the creditors had already been made equal.
H §42.8.6.8oc edictum eum coercet, qui sciens eum in fraudem creditorum hoc facere suscepit, quod in fraudem creditorum fiebat: quare si quid in fraudem creditorum factum sit, si tamen is qui cepit ignorauit, cessare uidentur uerba edicti.
This edict restrains him who, knowing that the debtor was doing this to defraud creditors, undertook what was being done to defraud creditors; therefore, if anything has been done to defraud creditors, but he who received it was ignorant of it, the words of the edict are deemed not to apply.
§42.8.6.9Praeterea illud sciendum est eum, qui consentientibus creditoribus aliquid a fraudatore uel emit uel stipulatus est uel quid aliud contraxit, non uideri in fraudem creditorum fecisse: nemo enim uidetur fraudare eos, qui sciunt et consentiunt.
Furthermore, it should be known that he who, with the consent of the creditors, has either purchased something from the defrauder, or stipulated for something, or entered into any other contract, is not deemed to have acted to defraud the creditors; for no one is deemed to defraud those who know and consent.
§42.8.6.10Si quid cum pupillo gestum sit in fraudem creditorum, Labeo ait omnimodo reuocandum, si fraudati sint creditores, quia pupilli ignorantia, quae per aetatem contingit, non debet esse captiosa creditoribus et ipsi lucrosa: eoque iure utimur.
If any transaction has been entered into with a pupil to defraud creditors, Labeo says it must by all means be revoked, if the creditors have been defrauded, because the pupil's ignorance, which occurs on account of his age, ought not to be disadvantageous to the creditors and lucrative to himself; and we observe this rule of law.
§42.8.6.11Simili modo dicimus et si cui donatum est, non esse quaerendum, an sciente eo, cui donatum, gestum sit, sed hoc tantum, an fraudentur creditores: nec uidetur iniuria adfici is qui ignorauit, cum lucrum extorqueatur, non damnum infligatur.
In like manner, we say that if a donation has been made to anyone, we must not inquire whether it was done with the knowledge of the donee, but only whether the creditors are defrauded; nor is he who was ignorant deemed to suffer an injury, since a gain is being wrested from him, not a loss inflicted.
in hos tamen, qui ignorantes ab eo qui soluendo non sit liberalitatem acceperunt, hactenus actio erit danda, quatenus locupletiores facti sunt, ultra non.
Nevertheless, against those who, being ignorant, have received a liberality from one who is insolvent, the action is to be granted only to the extent that they have been made richer, and no further.
§42.8.6.12Simili modo quaeritur, si seruus ab eo, qui soluendo non sit, ignorante domino ipse sciens rem acceperit, an dominus teneretur.
In like manner, it is asked whether, if a slave, without his master's knowledge, has himself knowingly received a thing from an insolvent person, the master is held liable.
et ait Labeo hactenus eum teneri, ut restituat quod ad se peruenit aut dumtaxat de peculio damnetur uel si quid in rem eius uersum est.
And Labeo says that he is held liable only to the extent that he restores what came to his hands, or at least is condemned to the extent of the peculium, or if anything has been turned to his benefit.
eadem in filio familias probanda sunt.
The same is to be approved in the case of a filius familias.
sed si dominus scit, suo nomine conuenietur.
But if the master knows, he shall be sued in his own name.
§42.8.6.13Item si necessarius heres legata praestiterit, deinde eius bona uenierint, Proculus ait, etiamsi ignorauerint legatarii, tamen utilem actionem dandam: quod nequaquam dubium est.
Likewise, if a necessary heir has paid legacies, and thereafter his goods have been sold, Proculus says that even if the legatees were ignorant, an analogous action must nevertheless be granted; and this is by no means doubtful.
H §42.8.6.14uius actionis annum computamus utilem, quo experiundi potestas fuit, ex die factae uenditionis.
We calculate the year for this action as an available year during which there was the capacity to sue, from the day the sale was made.