[ULPIANUS libro septuagensimo sexto ad edictum. ] §44.5.1.prIusiurandum uicem rei iudicatae optinet non immerito, cum ipse quis iudicem aduersarium suum de causa sua fecerit deferendo ei iusiurandum.
[ULPIAN in the seventy-sixth book on the Edict.] An oath has the force of a res judicata, and not without reason, since a person has himself made his adversary the judge of his own case by deferring the oath to him.
§44.5.1.1Si pupillus sine tutoris auctoritate detulerit iusiurandum, dicemus non obstare exceptionem istam, nisi tutore auctore in iudicio delatio facta sit.
If a ward has deferred an oath without the authority of his tutor, we shall say that this exception does not bar the claim, unless the deferment was made in court with the tutor's authority.
§44.5.1.2Si petitor fundi iusiurandum detulerit aduersario, ut, si auctor eius iurasset suum fundum se tradidisse, ab ea controuersia discessurum se, exceptio possessori fundi dabitur.
If a claimant of a tract of land has deferred an oath to his adversary to the effect that, if the adversary's predecessor in title had sworn that he had delivered his own land, the claimant would withdraw from that dispute, an exception will be granted to the possessor of the land.
§44.5.1.3Si fideiussor iurauit, si quidem de sua persona tantum iurauit, quasi se non esse obligatum, nihil reo proderit: si uero in rem iurauit, dabitur exceptio reo quoque.
If a surety has sworn, if indeed he swore only concerning his own person, as if he were not bound, it will be of no benefit to the principal debtor; but if he swore concerning the matter itself, an exception will be granted to the principal debtor as well.
§44.5.1.4Si manumisero eum seruum, qui negotia mea gesserat in seruitute, deinde stipulatus ab eo fuero, quod negotia mea gesserit, quidquid ob eam rem, si tunc liber fuisset, eum mihi dare oporteret, id dari, deinde ex stipulatu agam, non summoueri me exceptione: neque enim oneratum se hoc nomine potest queri libertus, si lucrum abruptum ex re patroni non faciat.
If I manumit a slave who had managed my affairs during his servitude, and subsequently take a stipulation from him that, in respect of his management of my affairs, whatever he would have been bound to give me if he had been free at that time, should be given, and if I then sue on the stipulation, I am not to be barred by the exception; for the freedman cannot complain that he is burdened on this account, if he is prevented from making an abrupt profit from the property of his patron.
§44.5.1.5Quae onerandae libertatis causa stipulatus sum, a liberto exigere non possum.
I cannot demand from a freedman what I have stipulated for the purpose of burdening his liberty.
onerandae autem libertatis causa facta bellissime ita definiuntur, quae ita imponuntur, ut, si patronum libertus offenderit, petantur ab eo semperque sit metu exactionis ei subiectus, propter quem metum quoduis sustineat patrono praecipiente.
Moreover, acts done for the purpose of burdening liberty are most beautifully defined as those which are imposed in such a way that, if the freedman should offend his patron, they may be demanded from him, and he may always be subject to him through fear of exaction, and because of this fear he may endure whatever the patron commands.
§44.5.1.6In summa si in continenti impositum quid sit liberto, quod ἐπαιρούμενον oneret eius libertatem, dicendum est exceptioni locum facere.
In short, if anything is imposed on a freedman immediately, which as an added burden weighs down his liberty, it must be said that this gives room for the exception.
sed si post interuallum, habet quidem dubitationem, quia nemo eum cogebat hoc promittere: sed idem erit probandum et hic, tamen causa cognita, si liquido appareat libertum metu solo uel nimia patrono reuerentia ita se subiecisse, ut uel poenali quadam stipulatione se subiceret.
But if it is after an interval, it does indeed raise a doubt, because no one compelled him to promise this; but the same rule must be approved here too, provided, however, after an inquiry into the case, it clearly appears that the freedman subjected himself solely out of fear or out of excessive reverence for his patron, so that he subjected himself even to some penal stipulation.
§44.5.1.7Si libertatis causa societatem libertus cum patrono coierit et patronus cum liberto pro socio agat, an haec exceptio sit necessaria? et puto ipso iure tutum esse libertum aduersus exactionem patroni.
If a freedman has entered into a partnership with his patron for the sake of his liberty, and the patron brings an action on partnership against the freedman, is this exception necessary? And I think that the freedman is protected by operation of law against the patron's exaction.
§44.5.1.8Exceptionem onerandae libertatis causa, sicut et ceteras fideiussori non esse denegandas sciendum est, nec ei quidem, qui rogatu liberti reus factus est: sed et ipsi liberto, siue procurator ad defendendum a reo datus fuerit siue heres ei exstiterit.
It must be understood that the exception for the purpose of burdening liberty, like other exceptions, is not to be denied to a surety, nor indeed to one who has become a debtor at the request of the freedman; but also to the freedman himself, whether he has been appointed by the debtor as a procurator for defense or has become his heir.
cum enim propositum sit praetori in huiusmodi obligationibus reo succurrere, non seruaturum propositum suum, nisi fideiussorem quoque et eum, qui rogatu liberti reus factus fuerit, aduersus patronum defenderit: etenim parui refert, protinus libertus patrono cogatur dare an per interpositam fideiussoris uel rei personam.
For since it is the praetor's purpose to relieve the debtor in obligations of this kind, he would not maintain his purpose unless he also defended the surety and the person who became a debtor at the request of the freedman against the patron; for indeed it matters little whether the freedman is compelled to pay the patron directly or through the interposed person of a surety or a debtor.
§44.5.1.9Siue autem ipsi patrono sit promissum siue alii uoluntate patroni, onerandae libertatis causa uidetur factum et ideo haec exceptio locum habebit.
Moreover, whether the promise was made to the patron himself or to another by the patron's will, it is deemed to have been made for the purpose of burdening liberty, and therefore this exception will apply.
§44.5.1.10Quod si patronus libertum suum delegauerit creditori, an aduersus creditorem, cui delegatus promisit libertatis causa onerandae, exceptione ista uti possit, uideamus.
But if a patron has delegated his freedman to his creditor, let us see whether the freedman can use this exception against the creditor to whom he made the promise under delegation for the purpose of burdening his liberty.
et Cassius existimasse Urseium refert creditorem quidem minime esse submouendum exceptione, quia suum recepit: uerumtamen libertum patrono posse condicere, si non transigendae controuersiae gratia id fecit.
And Cassius reports that Urseius thought that the creditor indeed should by no means be barred by the exception, because he received what was his own; nevertheless, the freedman can bring an action for recovery against the patron, unless he did this for the sake of settling a dispute.
§44.5.1.11Item si libertus debitorem suum patrono dele gauerit, nulla exceptione summouendus est patronus, sed libertus a patrono per condictionem hoc repetet.
Likewise, if a freedman has delegated his debtor to his patron, the patron is not to be barred by any exception, but the freedman shall recover this from the patron by an action for recovery.
§44.5.1.12Haec exceptio non tantum ipsi liberto, uerum successoribus quoque liberti danda est: et uersa uice heredem patroni summouendum, si haec persequatur, sciendum est.
This exception is to be granted not only to the freedman himself but also to his successors; and conversely, it must be understood that the heir of the patron is to be barred if he pursues these claims.