[ULPIANUS libro septuagensimo ad edictum. ] §43.24.5.prAut qui aliter fecit, quam denuntiauit: uel qui decepto facit eo, ad quem pertinuit non facere: uel consulto tum denuntiat aduersario, cum eum scit non posse prohibere: uel tam sero pronuntiat, ut uenire prohibiturus, prius quam fiat, non possit.
[ULPIANUS libro septuagensimo ad edictum.] Or one who has acted otherwise than as he gave notice; or one who acts after deceiving the person whose interest it was that the work should not be done; or one who deliberately gives notice to his adversary at a time when he knows the adversary cannot prevent it; or one who announces it so late that the person who would come to prevent it cannot do so before it is done.
et haec ita Labeonem probare Aristo ait.
And Aristo says that Labeo approves of these views in this way.
§43.24.5.1Si quis se denuntiauerit opus facturum, non semper non uidetur clam fecisse, si post denuntiationem fecerit: debebit enim (et ita Labeo) et diem et horam denuntiatione conplecti et ubi et quod opus futurum sit: neque perfusorie aut obscure dicere aut denuntiare: neque tam artare aduersarium, ut intra diem occurrere ad prohibendum non possit.
If anyone has given notice that he will do a work, he is not always deemed not to have acted clandestinely if he does it after the notice; for he must (and so Labeo holds) include both the day and the hour in the notice, as well as where and what work is to be done; and he must not speak or give notice superficially or obscurely, nor must he so constrain his adversary that the latter cannot arrive within the day to prevent it.
§43.24.5.2Et si forte non sit, cui denuntietur, neque dolo malo factum sit ne sit, amicis denique aut procuratori aut ad domum denuntiandum est.
And if by chance there is no one to whom notice can be given, and it has not been brought about by malice aforethought that there is no one, then notice must be given to his friends, or to his agent, or at his house.
§43.24.5.3Sed et Seruius recte ait sufficere feminae, uiro notum facere opus se facturum: uel denique sciente eo facere: quamquam etiam illud sufficiat celandi animum non habere.
But Servius also rightly says that it is sufficient for a woman to make it known to her husband that she is going to do the work, or indeed to do it with his knowledge; although even this may suffice, that she has no intention of concealment.
§43.24.5.4Item ait, si quis in publico municipii uelit facere, sufficere ei, si curatori rei publicae denuntiet.
He also says that if anyone wishes to do a work on the public land of a municipality, it is sufficient for him if he gives notice to the curator of the public property.
§43.24.5.5Si quis, dum putat locum tuum esse, qui est meus, celandi tui, non mei causa fecerit, mihi interdictum competere.
If anyone, while thinking that a place which is mine belongs to you, has done a work for the sake of concealing it from you and not from me, the interdict is available to me.
§43.24.5.6Idem dicit et si serui mei uel procuratoris celandi causa factum sit, mihi interdictum competere.
He says the same thing even if it was done for the sake of concealing it from my slave or my agent, that the interdict is available to me.
§43.24.5.7Si quis, cum non denuntiasset opus se facturum eique denuntiatum esset ne faceret, fecerit, utilius puto probandum ui eum fecisse.
If anyone, when he had not given notice that he would do a work, and had been given notice not to do it, has done it, I think it more useful to hold that he did it by force.
§43.24.5.8Haec uerba 'quod ui aut clam factum est' ait Mucius ita esse 'quod tu aut tuorum quis aut tuo iussu factum est'.
Mucius says that these words 'what has been done by force or clandestinely' mean 'what has been done by you, or by anyone of your household, or by your order'.
§43.24.5.9Labeo autem ait plures personas contineri his uerbis. nam ecce primum heredes eorum, quos enumerat Mucius, contineri putat.
Labeo, however, says that more persons are included in these words; for indeed, first of all, he thinks that the heirs of those whom Mucius enumerates are included.
§43.24.5.10Idem ait et aduersus procuratorem tutorem curatorem municipumue syndicum alieno nomine interdici posse.
He also says that an interdict can be brought in another's name against an agent, a tutor, a curator, or the syndic of a municipality.
§43.24.5.11Si quid seruus meus fecit, non ob id mecum actio est, sed si id meo nomine aut suo fecit: nam si tuum seruum mercennarium habuero, quidquid ab eo factum fuerit meo nomine, ob id non tecum, sed mecum, cuius iussu aut nomine id opus a seruo tuo factum fuerit, agendum erit hoc interdicto.
If my slave has done anything, an action does not lie against me on that account, unless he did it in my name or in his own; for if I have your slave as a hired laborer, whatever is done by him in my name, on that account one must sue not you, but me, by whose order or in whose name that work was done by your slave, under this interdict.
§43.24.5.12Similiter quod iussu cuius factum erit, ob id non cum eo, sed cuius nomine iusserit, haec actio est.
Similarly, regarding what is done by order of someone, this action lies not against him, but against the person in whose name he gave the order.
nam si procurator tutor curator duumuir municipii, quod eius nomine ageret, cuius negotium procuraret, fieri iusserit, ob id agendum erit cum eo, cuius nomine factum quid erit, non cum eo, qui ita iusserit.
For if an agent, a tutor, a curator, or a duumvir of a municipality, acting in the name of the person whose business he was managing, has ordered a work to be done, on that account action must be brought against the person in whose name something was done, not against the one who so ordered.
et si tibi mandauero, ut opus fieri iuberes et in ea re mihi parueris, mecum, inquit, non tecum erit actio.
And if I mandate you to order a work to be done, and you comply with me in that matter, the action, he says, will lie against me, not against you.
§43.24.5.13Et cum interdictum sic sit scriptum 'quod ui aut clam factum est', non ita 'quod ui aut clam fecisti', latius porrigi quam ad has personas, quas supra numerauimus, Labeo putat.
And since the interdict is drafted thus, 'what has been done by force or clandestinely', and not 'what you have done by force or clandestinely', Labeo thinks that it extends more widely than to those persons whom we have enumerated above.
§43.24.5.14Et hoc iure utimur, ut, siue ego fecissem siue fieri iussi, interdicto quod ui aut clam tenear.
And we observe this rule of law, that whether I did it myself or ordered it to be done, I am bound by the interdict concerning what has been done by force or clandestinely.