[ULPIANUS libro septuagensimo primo ad edictum. ] §43.24.3.prProhibere autem non utique per semet ipsum necesse est, sed et si quis per seruum suum uel procuratorem prohibuerit, recte uidetur prohibuisse.
Moreover, it is not absolutely necessary to prevent the work in person, but even if someone has prevented it through his slave or procurator, he is deemed to have prevented it rightfully.
idem etiam si mercennarius meus prohibuerit.
The same applies if my hired laborer has prevented it.
nec quem moueat, quod per liberam personam actio adquiri non solet: nam prohibitio haec demonstrat ui te facere, quid mirum, cum et si clam tu me feceris, habeam actionem? ergo facto magis tuo delinquentis quam alieno adquiritur mihi actio.
Nor should anyone be disturbed by the fact that an action is not usually acquired through a free person: for this prevention demonstrates that you are acting by force, and what wonder is it, since even if you have acted clandestinely toward me, I would have an action? Therefore, the action is acquired by me rather by your own act as the wrongdoer than by another’s.
§43.24.3.1Illud sciendum est non omnibus momentis uim esse faciendam, sed semel inter initia facta perseuerat.
It should be known that force does not have to be applied at every single moment, but once done at the beginning, it continues.
§43.24.3.2Sed si permiserit, aduersus eum, qui utatur interdicto, exceptio erit necessaria.
But if he has given permission, an exception will be necessary against the one who uses the interdict.
§43.24.3.3Non tantum autem si ego permisero, sed et si procurator meus uel tutor qui tutelam administrat uel curator pupilli furiosi siue adulescentis, dicendum erit exceptioni locum fore.
Moreover, we must say that there will be room for an exception not only if I have given permission, but also if my procurator, or a tutor who administers the tutelage, or the curator of a ward, a madman, or a youth has done so.
§43.24.3.4Plane si praeses uel curator rei publicae permiserit in publico facere, Nerua scribit exceptionem locum non habere, quia etsi ei locorum, inquit, publicorum procuratio data est, concessio tamen data non est.
Clearly, if a governor or the curator of a municipality has permitted work to be done on public property, Nerva writes that the exception has no place, because, he says, although the administration of public places was given to him, yet the power of granting concessions was not given.
hoc ita uerum est, si non lex municipalis curatori rei publicae amplius concedat.
This is true only if the municipal law does not grant wider powers to the curator of the municipality.
sed et si a principe uel ab eo, cui princeps hoc ius concedendi dederit idem erit probandum.
But the same must be approved if the permission is given by the emperor or by one to whom the emperor has granted this right of concession.
§43.24.3.5Si quis paratus sit se iudicio defendere aduersus eos, qui interdicendum putant, ne opus fiat: an uideatur desinere ui facere? et magis est, ut desinat, si modo satis offerat et defendere paratus est, si quis agat: et ita Sabinus scribit.
If someone is prepared to defend himself in court against those who think that an interdict should be sought to prevent the work from being done, should he be seen to cease acting by force? And it is more correct to hold that he does cease, provided that he offers security and is prepared to defend himself if anyone brings an action; and Sabinus writes to this effect.
§43.24.3.6Sed et si quis damni infecti paratus sit cauere, cum propter hoc tantum esset prohibitus, uel quia non defendebat uel damni infecti non repromittebat, consequens est dicere desinere eum ui facere.
But also, if someone is prepared to give security for threatened damage, when he had been prevented solely on this account—either because he was not defending himself or because he was not promising indemnity for threatened damage—it is logical to say that he ceases to act by force.
§43.24.3.7Clam facere uideri Cassius scribit eum, qui celauit aduersarium neque ei denuntiauit, si modo timuit eius controuersiam aut debuit timere.
Cassius writes that he is deemed to act clandestinely who has concealed the matter from his adversary and has not given him notice, provided that he feared a dispute with him or ought to have feared it.
§43.24.3.8Idem Aristo putat eum quoque clam facere, qui celandi animo habet eum, quem prohibiturum se intellexerit et id existimat aut existimare debet se prohibitum iri.
Aristo thinks that he also acts clandestinely who, with the intention of concealment, keeps in the dark the person whom he understands would prevent him, and believes or ought to believe that he will be prevented.