[SCAEUOLA libro uicensimo octauo digestorum. ] §45.1.122.2Flauius Hermes hominem Stichum manumissionis causa donauit et ita de eo stipulatus est: 'Si hominem Stichum, de quo agitur, quem hac die tibi donationis causa manumissionisque dedi, a te heredeque tuo manumissus uindictaque liberatus non erit, quod dolo malo meo non fiat, poenae nomine quinquaginta dari stipulatus est Flauius Hermes, spopondit Claudius'.
Flavius Hermes donated the slave Stichus for the purpose of manumission and made a stipulation concerning him as follows: 'If the slave Stichus, who is the subject of this transaction, whom I have given to you on this day for the purpose of donation and manumission, is not manumitted and set free by vindicta by you and your heir—provided that this does not happen through my malice—Flavius Hermes stipulated for fifty to be given under the name of penalty, and Claudius promised.' I ask whether Flavius Hermes can sue Claudius concerning the freedom of Stichus.
quaero, an Flauius Hermes Claudium de libertate Stichi conuenire potest. respondit nihil proponi, cur non potest.
He answered that nothing is proposed to show why he cannot.
item quaero, an, si Flauii Hermetis heres a Claudii herede poenam supra scriptam petere uoluerit, Claudii heres libertatem Sticho praestare possit, ut poena liberetur.
Likewise I ask, if the heir of Flavius Hermes wishes to demand the aforementioned penalty from the heir of Claudius, whether the heir of Claudius can grant freedom to Stichus in order to be freed from the penalty.
respondit posse.
He answered that he can.
item quaero, si Flauii Hermetis heres cum Claudii herede ex causa supra scripta nolit agere, an nihilo minus Sticho libertas ex conuentione, quae fuit inter Hermetem et Claudium, ut stipulatione supra scripta ostenditur, ab herede Claudii praestari debeat.
Likewise I ask, if the heir of Flavius Hermes does not wish to bring an action against the heir of Claudius on the aforementioned ground, whether freedom must nevertheless be granted to Stichus by the heir of Claudius based on the agreement between Hermes and Claudius, as shown by the aforementioned stipulation.
respondit debere.
He answered that it must.
§45.1.122.3Coheredes cum praedia hereditaria diuiserant, unum praedium commune reliquerunt sub hoc pacto, ut, si quis eorum partem suam alienare uoluisset, eam uel coheredi suo uel eius successori uenderet centum uiginti quinque: quod si quis aliter fecisset, poenam centum inuicem stipulati sunt: quaero, cum coheres mulier coheredis liberorum tutores saepius testato conuenerit et desiderauerit, ut secundum conuentionem aut emant aut uendant, hique nihil tale fecerint, an, si mulier extero uendiderit, poena ab ea centum exigi possit.
When co-heirs divided the inherited estates, they left one estate in common under this pact, that if any of them wished to alienate their share, they should sell it either to their co-heir or to his successor for one hundred and twenty-five; but if anyone did otherwise, they mutually stipulated for a penalty of one hundred. I ask whether, when a female co-heir repeatedly requested, in the presence of witnesses, the tutors of the children of her co-heir, desiring that according to the agreement they should either buy or sell, and they did nothing of the sort, if the woman sells to an outsider, the penalty of one hundred can be exacted from her.
respondit secundum ea quae proponerentur obstaturam doli mali exceptionem.
He answered that, according to the facts proposed, the exception of malice would stand in the way.
§45.1.122.4Agerius filius familias seruo Publii Maeuii stipulanti spopondit se daturum, quidquid patrem suum Publio Maeuio debere constitisset: quaesitum est patre defuncto, antequam constitisset, quid quantumque deberet, an, si aduersus heredem eius actum fuisset aliumue successorem et de debito constitisset, Agerius teneatur.
Agerius, a son in power, promised to a slave of Publius Maevius who made the stipulation, that he would give whatever should be established that his father owed to Publius Maevius. It was asked whether, if the father died before it was established what and how much he owed, and an action was brought against his heir or another successor and the debt was established, Agerius would be bound.
respondit, si condicio non exstitisset, stipulationem non commissam.
He answered that if the condition had not been fulfilled, the stipulation was not incurred.
§45.1.122.5Seia heres unius tutoris, cum herede pupillae transactione pacto solo facta, maiorem partem soluit, residuam cauit: sed ilico negauit heres se transactionem seruare et apud iudicem tutelae egit et uictus prouocauit ad competentem iudicem et ab eo quoque ad principem idem prouocauit et iniusta haec quoque prouocatio eius pronuntiata est.
Seia, the heir of one tutor, having made a compromise by mere pact with the heir of the female ward, paid the greater part and gave security for the remainder; but the heir immediately denied that he would keep the compromise, and brought an action on guardianship before the judge, and being defeated, appealed to the competent judge, and from him also appealed to the emperor, and this appeal of his was also pronounced unjust.
quaesitum est, cum per heredem pupillae mora intercesserit, quo minus pecunia in stipulationem deducta ab herede tutoris solueretur nec umquam petierit, an ei hodie debeantur usurae ab herede tutoris.
It was asked whether, since delay occurred on the part of the heir of the ward, preventing the money brought into the stipulation from being paid by the heir of the tutor, and he never demanded it, interest is due to him today from the heir of the tutor.
respondit, si Seia non cessasset ex stipulatione pecuniam offerre, iure usuras non deberi.
He answered that if Seia had not failed to offer the money under the stipulation, interest is not due by law.
§45.1.122.6Duo fratres hereditatem inter se diuiserunt et cauerunt sibi nihil se contra eam diuisionem facturos et, si contra quis fecisset, poenam alter alteri promisit: post mortem alterius qui superuixit petit ab heredibus eius hereditatem quasi ex causa fideicommissi sibi a patre relicti debitam et aduersus eum pronuntiatum est, quasi de hoc quoque transactum fuisset: quaesitum est, an poena commissa esset.
Two brothers divided an inheritance between themselves and gave security to each other that they would do nothing contrary to that division, and if anyone did contrary, they promised a penalty to each other. After the death of one, the survivor demanded the inheritance from his heirs as due to him under a trust left by their father, and judgment was given against him, as if a compromise had been made concerning this also. It was asked whether the penalty had been incurred.
respondit poenam secundum ea quae proponuntur commissam.
He answered that according to the facts proposed, the penalty was incurred.