[MARCELLUS libro uicensimo digestorum. ] §46.3.72.prQui decem debet, si ea optulerit creditori et ille sine iusta causa ea accipere recusauit, deinde debitor ea sine sua culpa perdiderit, doli mali exceptione potest se tueri, quamquam aliquando interpellatus non soluerit: etenim non est aequum teneri pecunia amissa, quia non teneretur, si creditor accipere uoluisset.
[MARCELLUS, in his twentieth book of the Digests.] A person who owes ten, if he has offered it to the creditor and the latter has refused to accept it without just cause, and subsequently the debtor has lost it without fault of his own, can protect himself by the plea of fraud, even though at some time previously he did not pay when summoned: for indeed it is not equitable that he should be held liable for the lost money, because he would not be held liable if the creditor had been willing to accept it.
quare pro soluto id, in quo creditor accipiendo moram fecit, oportet esse.
Therefore, that in respect of which the creditor was in default in accepting must be treated as paid.
et sane si seruus erat in dote eumque optulit maritus et is seruus decessit, aut nummos optulit eosque non accipiente muliere perdiderit, ipso iure desinet teneri.
And indeed, if a slave was in a dowry and the husband offered him and the slave died, or if he offered money and lost it because the wife would not accept it, he will cease to be bound by operation of law.
§46.3.72.1Cum Stichum mihi deberes et in soluendo moram fecisses, sub condicione eum promisisti: pendente ea Stichus decessit: uideamus, an, quia nouari prior obligatio non potest, petitio serui competat ea, quae competeret, si non intercessisset stipulatio.
When you owed me Stichus and had been in default in paying him, you promised him under a condition: while that condition was pending, Stichus died. Let us see whether, since the prior obligation cannot be novated, the claim for the slave is available—the same claim that would be available if the stipulation had not intervened.
sed in promptu contradictio est debitorem, cum stipulanti creditori sub condicione promisit, non uideri in solutione hominis cessasse: nam uerum est eum, qui interpellatus dare noluit, offerentem postea periculo liberari.
But the counter-argument is readily available: that the debtor, when he promised under a condition to the creditor demanding the stipulation, is not deemed to have defaulted in the delivery of the slave; for it is true that he who was unwilling to give when summoned is released from the risk if he subsequently offers him.
§46.3.72.2Sed quid si ignorante debitore ab alio creditor eum stipulatus est? hic quoque existimandus est periculo debitor liberatus, quemadmodum si quolibet nomine eius seruum offerente stipulator accipere noluisset.
But what if, without the knowledge of the debtor, the creditor stipulated for him from someone else? In this case also, the debtor must be considered released from the risk, just as if the stipulator had refused to accept the slave when he was offered on any account on his behalf.
§46.3.72.3Idem responsum est, si quis, cum subreptus sibi seruus esset, sub condicione stipulatus fuerit quidquid furem dare facere oportet: nam et fur condicione liberatur, si dominus oblatum sibi accipere noluit.
The same answer was given if someone, when his slave had been stolen, stipulated under a condition for whatever the thief ought to give or do; for the thief also is released by the condition if the owner refused to accept what was offered to him.
si tamen, cum in prouincia forte seruus esset, intercesserit stipulatio (et finge prius quam facultatem eius nancisceretur fur uel promissor, decessisse seruum), non poterit rationi, quam supra reddidimus, locus esse: non enim optulisse eum propter absentiam intellegi potest.
If, however, the stipulation intervened while the slave happened to be in a province (and imagine that the slave died before the thief or the promisor obtained the power over him), there will be no room for the reason we gave above; for he cannot be understood to have offered him on account of his absence.
§46.3.72.4Stichum aut Pamphilum stipulatus sum, cum esset meus Pamphilus: nec si meus esse desierit, liberabitur promissor Pamphilum dando: neutrum enim uidetur in Pamphilo homine constitisse nec obligatio nec solutio.
I stipulated for Stichus or Pamphilus when Pamphilus was mine: even if he ceases to be mine, the promisor will not be released by giving Pamphilus; for neither obligation nor payment is deemed to have been established in the person of Pamphilus.
sed ei, qui hominem dari stipulatus est, unum etiam ex his, qui tunc stipulatoris serui erant, dando promissor liberatur: ut quidem ipsa et hic ex his dari stipulatus est, qui eius non erant.
But to one who has stipulated for "a slave" to be given, the promisor is released even by giving one of those who were then the stipulator's slaves; provided that he himself here stipulated for one to be given from those who were not his.
fingamus ita stipulatum: 'hominem ex his, quos Sempronius reliquit, dare spondes?', cum tres Sempronius reliquisset, eorumque aliquem stipulatoris fuisse: num mortuis duobus, qui alterius erant, supererit ulla obligatio, uideamus.
Let us imagine a stipulation made thus: "Do you promise to give a slave from those whom Sempronius left?", when Sempronius had left three, and one of them had belonged to the stipulator: let us see whether, when the two who belonged to another have died, any obligation will survive.
et magis est deficere stipulationem, nisi ante mortem duorum desierit esse reliquus seruus stipulatoris.
And it is more reasonable that the stipulation fails unless, before the death of the two, the remaining slave ceases to belong to the stipulator.
§46.3.72.5Qui hominem debebat, Stichum, cui libertas ex causa fideicommissi praestanda est, soluit: non uidetur liberatus: nam uel minus hic seruum dedit quam ille, qui seruum dedit nondum noxa solutum.
He who owed a slave paid Stichus, to whom freedom ought to be granted under a fideicommissum: he is not deemed to have been released; for indeed he gave a slave of less value than one who gave a slave not yet released from a noxal action.
num ergo et si uispellionem aut alias turpem dederit hominem, idem sit? et sane datum negare non possumus et differt haec species a prioribus: habet enim seruum, qui ei auferri non possit.
Would it then be the same if he gave a corpse-bearer or an otherwise base person? And indeed, we cannot deny that a delivery was made, and this case differs from the preceding ones; for he has a slave who cannot be taken away from him.
§46.3.72.6Promissor serui eum debet hominem soluere, quem, si uelit stipulator, possit ad libertatem perducere.
The promisor of a slave must pay such a slave as the stipulator, if he wishes, can lead to freedom.