[IDEM libro quinquagensimo quarto digestorum. ] §46.3.34.prQui hominem aut decem tibi aut Titio dari promisit, si Titio partem hominis tradiderit, mox tibi decem numerauerit, non Titio, sed tibi partem hominis condicet, quasi indebitum tua uoluntate Titio solueret.
[THE SAME in the fifty-fourth book of Digests.] A person who has promised to give a slave or ten to you or to Titius, if he has delivered a part of the slave to Titius, and soon after has counted out ten to you, will claim the return of the part of the slave not from Titius, but from you, as if he had paid what was not due to Titius by your will.
idemque iuris erit etiam, si mortuo Titio decem soluerit, ut tibi potius quam heredi Titii partem hominis condicat.
And the same rule of law will apply even if, after the death of Titius, he has paid ten, so that he would claim the return of the part of the slave from you rather than from the heir of Titius.
§46.3.34.1Si duo rei stipulandi hominem dari stipulati fuerint et promissor utrique partes diuersorum hominum dederit, dubium non est, quin non liberetur.
If two joint stipulators have stipulated for a slave to be given, and the promisor has given to each of them parts of different slaves, there is no doubt that he is not released.
sed si eiusdem hominis partes utrique dederit, liberatio contingit, quia obligatio communis efficiet, ut quod duobus solutum est, uni solutum esse uideatur.
But if he has given to each parts of the same slave, a release is effected, because the common obligation will bring it about that what has been paid to two appears to have been paid to one.
nam ex contrario cum duo fideiussores hominem dari spoponderint, diuersorum quidem hominum partes dantes non liberantur: at si eiusdem hominis partes dederint, liberantur.
For on the contrary, when two guarantors have promised a slave to be given, if they give parts of different slaves they are indeed not released, but if they have given parts of the same slave, they are released.
§46.3.34.2Stipulatus sum decem mihi aut hominem Titio dari: si homo Titio datus fuisset, promissor a me liberatur et, antequam homo daretur, ego decem petere possum.
I stipulated for ten to be given to me or a slave to Titius: if the slave had been given to Titius, the promisor is released from me, and before the slave is given, I can demand the ten.
§46.3.34.3Si Titium omnibus negotiis meis praeposuero, deinde uetuero eum ignorantibus debitoribus administrare negotia mea, debitores ei soluendo liberabuntur: nam is, qui omnibus negotiis suis aliquem proponit, intellegitur etiam debitoribus mandare, ut procuratori soluant.
If I have placed Titius in charge of all my business, and afterwards forbid him to manage my business while the debtors are ignorant of this, the debtors will be released by paying him; for he who places anyone in charge of all his business is understood also to command the debtors to pay the agent.
§46.3.34.4Si nullo mandato intercedente debitor falso existimauerit uoluntate mea pecuniam se numerare, non liberabitur.
If, with no mandate intervening, a debtor erroneously thinks that he is paying the money by my will, he will not be released.
et ideo procuratori, qui se ultro alienis negotiis offert, soluendo nemo liberabitur:
And therefore, no one will be released by paying an agent who volunteers to meddle in another's business.
§46.3.34.5Et cum fugitiuus, qui pro libero se gerebat, rem uendidisset, responsum est emptores fugitiuo soluentes a domino liberatos non esse.
And when a runaway slave, who was acting as a free person, had sold a thing, it was answered that the buyers paying the runaway slave were not released from the master.
§46.3.34.6Si gener socero, ignorante filia, dotem soluisset, non est liberatus, sed condicere socero potest, nisi ratum filia habuisset.
If a son-in-law, without his daughter's knowledge, had paid the dowry to his father-in-law, he is not released, but he can claim it back from the father-in-law, unless the daughter has ratified it.
et propemodum similis est gener ei, qui absentis procuratori solueret, quia in causam dotis particeps et quasi socia obligationis patri filia esset.
And the son-in-law is almost similar to one who pays the agent of an absent person, because the daughter is a participant in the matter of the dowry and, as it were, a partner of the obligation to the father.
§46.3.34.7Si debitorem meum iussero pecuniam Titio dare donaturus ei, quamuis Titius ea mente acceperit, ut meos nummos faceret, nihilo minus debitor liberabitur: sed si postea Titius eandem pecuniam mihi dedisset, nummi mei fient.
If I order my debtor to give money to Titius, intending to make a gift to him, although Titius received it with the intention of making the coins mine, the debtor will nevertheless be released; but if afterwards Titius had given the same money to me, the coins will become mine.
§46.3.34.8Quidam filium familias, a quo fideiussorem acceperat, heredem instituerat: quaesitum est, si iussu patris adisset hereditatem, an pater cum fideiussore agere posset.
A certain person had appointed a son-in-power, from whom he had received a guarantor, as his heir; it was asked whether, if he had entered upon the inheritance by order of the father, the father could sue the guarantor.
dixi, quotiens reus satisdandi reo satis accipiendi heres existeret, fideiussores ideo liberari, quia pro eodem apud eundem debere non possent.
I said that whenever the debtor bound to give security becomes the heir of the creditor who receives the security, the guarantors are therefore released, because they cannot owe on behalf of the same person to the same person.
§46.3.34.9Si praedo id, quod a debitoribus hereditariis exegerat, petenti hereditatem restituerit, debitores liberabuntur.
If a possessor in bad faith restores what he had exacted from the debtors of the inheritance to the person claiming the inheritance, the debtors will be released.
§46.3.34.10Si decem aut hominem dari stipulatus fuero et duos fideiussores accepero Titium et Maeuium et Titius quinque soluerit, non liberabitur, priusquam Maeuius quoque quinque soluat: quod si Maeuius partem hominis soluerit, uterque obligatus remanebit.
If I have stipulated for ten or a slave to be given and have received two guarantors, Titius and Maevius, and Titius has paid five, he will not be released before Maevius also pays five; but if Maevius has paid a part of the slave, both will remain bound.
§46.3.34.11Qui perpetua exceptione se tueri potest, solutum repetit et ideo non liberatur.
He who can defend himself by a perpetual exception claims back what has been paid, and therefore is not released.
quare si ex duobus reis promittendi alter pepigerit, ne ab eo peteretur, quamuis soluerit, nihilo minus alter obligatus manebit.
Therefore, if one of two joint promisors has agreed that he should not be sued, although he has paid, the other will nevertheless remain bound.