[PROCULUS libro secundo epistularum. ] §45.1.113.prCum stipulatus sim mihi, Procule, si opus arbitratu meo ante kalendas Iunias effectum non sit, poenam, et protuli diem: putasne uere me posse dicere arbitratu meo opus effectum non esse ante kalendas Iunias, cum ipse arbitrio meo aliam diem operi laxiorem dederim? Proculus respondit: non sine causa distinguendum est interesse, utrum per promissorem mora non fuisset, quo minus opus ante kalendas Iunias ita, uti stipulatione comprehensum erat, perficeretur, an, cum iam opus effici non posset ante kalendas Iunias, stipulator diem in kalendis Augustis protulisset.
[PROCULUS, book two of Letters.] When I have stipulated for myself, Proculus, "if the work has not been completed by my decision before the Kalends of June, a penalty", and I have extended the date: do you think that I can truly say that the work was not completed by my decision before the Kalends of June, since I myself by my own decision have given another, more relaxed date for the work? Proculus answered: It is not without reason that a distinction must be made as to where the difference lies, whether there had been no delay on the part of the promisor to prevent the work from being completed before the Kalends of June just as had been comprised in the stipulation, or whether, when the work could already not be completed before the Kalends of June, the stipulator had extended the date to the Kalends of August.
nam si tum diem stipulator protulit, cum iam opus ante kalendas Iunias effici non poterat, puto poenam esse commissam nec ad rem pertinere, quod aliquod tempus ante kalendas Iunias fuit, quo stipulator non desiderauit id ante kalendas Iunias effici, id est quo non est arbitratus ut fieret quod fieri non poterat.
For if the stipulator extended the date at a time when the work could already not be completed before the Kalends of June, I think that the penalty has been incurred, and that it is not relevant to the matter that there was some time before the Kalends of June during which the stipulator did not demand that it be completed before the Kalends of June, that is, during which he did not decide that what could not be done should be done.
aut si hoc falsum est, etiam si stipulator pridie kalendas Iunias mortuus esset, poena commissa non esset, quoniam mortuus arbitrari non potuisset et aliquod tempus post mortem eius operi perficiendo superfuisset.
Or, if this is false, even if the stipulator had died on the day before the Kalends of June, the penalty would not have been incurred, since a dead person could not have made a decision and some time would have remained after his death for the completion of the work.
et propemodum etiam si ante kalendas Iunias futurum esse coepit opus ante eam diem effici non posse, poena commissa est.
And almost in the same way, even if before the Kalends of June it began to be the case that the work could not be completed before that date, the penalty is incurred.
§45.1.113.1Cum uenderet aliquis, promisit emptori fideiussores praestari et rem uenditam liberari: quae ut liberetur, nunc desiderat emptor: in mora est is, qui ea stipulatione id futurum promisit: quaero quid iuris sit.
When someone was selling, he promised the buyer that sureties would be provided and the thing sold would be released; now the buyer desires that it be released; the one who promised by that stipulation that this would happen is in delay: I ask what the law is.
Proculus respondit: tanti litem aestimari oportet, quanti actoris interest.
Proculus answered: The suit ought to be valued at as much as is of interest to the plaintiff.