[ULPIANUS libro uicensimo nono ad Sabinum. ] §47.2.12.prItaque fullo, qui curanda poliendaue uestimenta accepit, semper agit: praestare enim custodiam debet.
[ULPIANUS, on Sabinus, Book XXIX.] Therefore, a fuller who has received garments to be cleaned or finished always brings the action; for he must guarantee custody.
si autem soluendo non est, ad dominum actio redit: nam qui non habet quod perdat, eius periculo nihil est.
If, however, he is insolvent, the action reverts to the owner; for in the case of one who has nothing to lose, nothing is at his risk.
§47.2.12.1Sed furti actio malae fidei possessori non datur, quamuis interest eius rem non subripi, quippe cum res periculo eius sit: sed nemo de inprobitate sua consequitur actionem et ideo soli bonae fidei possessori, non etiam malae fidei furti actio datur.
But the action for theft is not given to a possessor in bad faith, although he has an interest in the thing not being stolen, since indeed the thing is at his risk; but no one obtains an action from their own wrongdoing, and therefore the action for theft is given to a possessor in good faith alone, not also to one in bad faith.
§47.2.12.2Sed et si res pignori data sit, creditori quoque damus furti actionem, quamuis in bonis eius non sit: quin immo non solum aduersus extraneum dabimus, uerum et contra ipsum quoque dominum furti actionem, et ita Iulianus scripsit.
But also if a thing has been given in pledge, we also give the action for theft to the creditor, although it is not among his assets; nay indeed, we shall give the action for theft not only against a stranger, but even against the owner himself, and so Julian wrote.
nec non et ipsi domino dari placet, et sic fit, ut non teneatur furti et agat.
Moreover, it is accepted that it is also given to the owner himself, and thus it happens that he is not held liable for theft and yet sues.
ideo autem datur utrique, quia utriusque interest.
It is given to both, however, because both have an interest.
sed utrum semper creditoris interest an ita demum, si debitor soluendo non est? et putat Pomponius semper eius interesse pignus habere, quod et Papinianus libro duodecimo quaestionum probat: et uerius est ubique uideri creditoris interesse, et ita et Iulianus saepissime scripsit.
But does the creditor always have an interest, or only if the debtor is insolvent? And Pomponius thinks that he always has an interest in holding the pledge, which Papinian also approves in the twelfth book of his Questions; and it is more correct that the creditor is everywhere deemed to have an interest, and so Julian also very often wrote.