[ULPIANUS libro septuagensimo primo ad edictum. ] §43.24.11.8Si postea, quam ui aut clam factum est, uenierit fundus, an uenditor nihilo minus hoc interdicto experiri possit, uideamus.
Let us see whether, if land is sold after something has been done by force or stealth, the seller can nevertheless sue under this interdict.
et extat sententia existimantium nihilo minus competere ei interdictum nec finiri uenditione: sed nec ex empto actione quicquam ei praestandum emptori ex eo opere, quod ante uenditionem factum est: satis enim esse, quod utique propter hoc opus uiliori praedium distraxerit.
And there is an opinion of those who think that the interdict is nevertheless available to him and is not terminated by the sale; but neither is anything to be made good by him to the buyer under the action on purchase on account of that work which was done before the sale; for it is sufficient that he has surely sold the land at a lower price on account of this work.
certe etsi non uiliori uendidit, idem erit probandum.
Assuredly, even if he did not sell it at a lower price, the same must be approved.
§43.24.11.9Plane si post uenditionem fundi opus factum est, etsi ipse experiatur uenditor, quia nondum traditio facta est, tamen ex empto actione emptori tenebitur: omne enim et commodum et incommodum ad emptorem pertinere debet.
Clearly, if the work was done after the sale of the land, even though the seller himself may sue because delivery has not yet been made, he will nevertheless be bound to the buyer under the action on purchase; for every advantage and disadvantage ought to belong to the buyer.
§43.24.11.10Si fundus in diem addictus sit, cui competat interdictum? et ait Iulianus interdictum quod ui aut clam ei competere, cuius interfuit opus non fieri: fundo enim in diem addicto et commodum et incommodum omne ad emptorem, inquit, pertinet, antequam uenditio transferatur, et ideo, si quid tunc ui aut clam factum est, quamuis melior condicio allata fuerit, ipse utile interdictum habebit: sed eam actionem sicut fructus medio tempore perceptos uenditi iudicio praestare cogendum ait.
If land has been knocked down subject to a better offer by a certain day, to whom is the interdict available? And Julian says that the interdict concerning what is done by force or stealth is available to him whose interest lay in the work not being done; for when land is knocked down subject to a better offer, every advantage and disadvantage, he says, belongs to the buyer before the sale is transferred, and therefore, if anything was then done by force or stealth, even though a better offer has been made, he himself will have a useful interdict; but he says that he must be compelled to make good that action, just like fruits gathered in the intervening time, in the action on sale.
§43.24.11.11Aristo autem scribit non possessori esse denuntiandum: nam si quis, inquit, fundum mihi uendiderit et necdum tradiderit et uicinus, cum opus facere uellet et sciret me emisse et in fundo morari, mihi denuntiauerit, esse eum tutum futurum, quod ad suspicionem clam facti operis pertinere: quod sane uerum est.
Aristo, however, writes that notice is not to be given to the possessor; for if anyone, he says, has sold me land and not yet delivered it, and a neighbor, wishing to do some work and knowing that I have bought it and am staying on the land, has given notice to me, he will be safe, which relates to the suspicion of work done by stealth; which indeed is true.
§43.24.11.12Ego, si post in diem addictionem factam fundus precario traditus sit, putem emptorem interdictum quod ui aut clam habere.
I, if the land has been delivered precariously after the contract with a better offer clause, would think that the buyer has the interdict concerning what is done by force or stealth.
si uero aut nondum traditio facta est aut etiam facta est precarii rogatio, non puto dubitandum, quin uenditor interdictum habeat: ei enim competere debet, etsi res ipsius periculo non sit, nec multum facit, quod res emptoris periculo est: nam et statim post uenditionem contractam periculum ad emptorem spectat et tamen antequam ulla traditio fiat, nemo dixit interdictum ei competere.
But if either delivery has not yet been made or even a request for precarious tenure has been made, I do not think it is to be doubted that the seller has the interdict; for it ought to be available to him, even if the property is not at his risk, and it does not make much difference that the property is at the buyer's risk; for immediately after the contract of sale is made, the risk looks to the buyer, and yet before any delivery is made, no one has said that the interdict is available to him.
si tamen precario sit in possessione, uideamus, ne, quia interest ipsius, qualiter qualiter possidet, iam interdicto uti possit.
If, however, he is in precarious possession, let us see whether, because it is in his interest, in whatever manner he possesses, he can already use the interdict.
ergo et si conduxit, multo magis: nam et colonum posse interdicto experiri in dubium non uenit.
Therefore, also if he has leased it, much more so; for it does not come into doubt that a tenant also can sue under the interdict.
plane si postea, quam melior condicio allata est, aliquid operis ui aut clam factum sit, nec Iulianus dubitaret interdictum uenditori competere: nam inter Cassium et Iulianum de illo, quod medio tempore accidit, quaestio est, non de eo opere, quod postea contigit.
Clearly, if any work was done by force or stealth after a better offer has been made, even Julian would not doubt that the interdict is available to the seller; for the dispute between Cassius and Julian is concerning that which happened in the intervening time, not concerning that work which occurred afterwards.
§43.24.11.13Si ita praedium uenierit, ut, si displicuisset, inemptum esset, facilius admittimus interdictum emptorem habere, si modo est in possessione: et si rescissio emptionis in alterius arbitrium conferatur, idem erit probandum: idemque et si ita uenisset, ut, si aliquid euenisset, inemptum esset praedium: et si forte commissoria uenierit, idem dicendum est.
If land has been sold on terms that, if it should displease, it should be unbought, we more readily admit that the buyer has the interdict, provided only that he is in possession; and if the rescission of the sale is referred to the judgment of another, the same must be approved; and the same also if it had been sold on terms that, if a certain event happened, the land should be unbought; and if by chance it was sold subject to a resolutive clause of non-payment, the same must be said.
§43.24.11.14Idem Iulianus scribit interdictum hoc non solum domino praedii, sed etiam his, quorum interest opus factum non esse, competere.
The same Julian writes that this interdict is available not only to the owner of the land, but also to those whose interest lay in the work not being done.