[IDEM libro septimo quaestionum. ] §44.7.23.prTraiecticiae pecuniae nomine, si ad diem soluta non esset, poena (uti adsolet) ob operas eius qui eam pecuniam peteret in stipulationem erat deducta: is qui eam pecuniam petebat parte exacta petere desierat, deinde interposito tempore interpellare instituerat.
[THE SAME, from the seventh book of Questions.] Under the heading of a maritime loan, a penalty had been included in the stipulation (as is customary) for the trouble of the person who should demand that money, in case it was not paid on the due date. The person who demanded that money had ceased to demand it after a part of it had been exacted, and then, after an interval of time had elapsed, he had begun to make demands.
consultus respondit eius quoque temporis, quo interpellatus non esset, poenam peti posse: amplius etiamsi omnino interpellatus non esset: nec aliter non committi stipulationem, quam si per debitorem non stetisset, quo minus solueret: alioquin dicendum et si is, qui interpellare coepisset, ualetudine impeditus interpellare desisset, poenam non committi.
On being consulted, he replied that the penalty could also be claimed for that time during which no demand had been made; and even more so, even if no demand had been made at all. For the stipulation is avoided only if the debtor was not responsible for the failure to pay; otherwise, it would have to be said that if one who had begun to make demands ceased to do so because he was prevented by illness, the penalty would not be incurred.
de illo sane potest dubitari, si interpellatus ipse moram fecerit, an, quamuis pecuniam postea offerat, nihilo minus poena committatur: et hoc rectius dicitur.
To be sure, there can be a doubt on this point: if the debtor himself, having been demanded, made delay, whether the penalty is nevertheless incurred even if he later offers the money; and this is more correctly asserted.
nam et si arbiter ex compromisso pecuniam certo die dare iusserit neque per eum, qui dare iussus sit, steterit, non committi poenam respondit: adeo ut et illud Seruius rectissime existimauerit, si quando dies, qua pecunia daretur, sententia arbitri conprehensa non esset, modicum spatium datum uideri.
For also, if an arbitrator under a compromise ordered money to be given on a certain day, and it was not the fault of him who was ordered to give it, he replied that the penalty is not incurred; so much so that Sergius also most correctly thought that, if ever the day on which the money should be given was not included in the arbitrator's decision, a reasonable space of time is deemed to have been given.
hoc idem dicendum et cum quid ea lege uenierit, ut, nisi ad diem pretium solutum fuerit, inempta res fiat.
This same thing must be said also when anything is sold under the condition that, unless the price is paid by the due date, the thing shall become unsold.