[IDEM libro octauo quaestionum. ] §47.2.62.prSi seruus communis uni ex dominis furtum fecerit, communi diuidundo agi debere placet et arbitrio iudicis contineri, ut aut damnum praestet aut parte cedat.
[THE SAME in the eighth book of Questions.] If a common slave commits a theft against one of his masters, it is held that an action for the division of common property ought to be brought, and that it is within the discretion of the judge that he should either make good the loss or surrender his share.
cui consequens uidetur esse, ut etiam, si alienauerit suam partem, similiter et cum emptore agi possit, ut quodammodo noxalis actio caput sequatur.
It seems to be a consequence of this that, even if he has alienated his share, an action can similarly be brought against the buyer, so that in a certain sense a noxal action follows the person.
quod tamen non eo usque producendum ait, ut etiam, si liber sit factus, cum ipso agi posse dicamus, sicuti non ageretur etiam, si proprius fuisset.
He says, however, that this should not be extended so far that we should say an action can be brought against the slave himself if he becomes free, just as an action would not be brought even if he had been a sole property.
ex his igitur apparere et mortuo seruo nihil esse, quod actor eo nomine consequi possit, nisi forte quid ex re furtiua ad socium peruenerit.
From these points, therefore, it appears that even if the slave dies, there is nothing that the plaintiff can obtain on that account, unless by chance some part of the stolen property has reached the partner.
§47.2.62.1His etiam illud consequens esse ait, ut et si is seruus, quem mihi pignori dederis, furtum mihi fecerit, agendo contraria pigneraticia consequar, uti similiter aut damnum decidas aut pro noxae deditione hominem relinquas.
He says that this also is a consequence: that if that slave whom you gave to me in pledge commits a theft against me, I may obtain by bringing a contrary action of pledge that you should similarly either settle the damage or leave the slave in place of noxal surrender.
§47.2.62.2Idem dicendum de eo, quem conuenisset in causa redhibitionis esse, uti, quemadmodum accessiones et fructus emptor restituere cogitur, ita et e contrario uenditor quoque uel damnum decidere uel pro noxae deditione hominem relinquere cogatur.
The same must be said of him whose case was agreed to be under redhibition, so that, just as the buyer is compelled to restore accessions and fruits, so on the contrary the seller should also be compelled either to settle the damage or to leave the slave in place of noxal surrender.
§47.2.62.3Nisi quod in his amplius sit, quod, si sciens quis ignoranti furem pignori dederit, omni modo damnum praestare cogendus est: id enim bonae fidei conuenire:
Except that in these latter cases there is this wider scope: that if someone, knowingly, gives a thief in pledge to one who is ignorant, he must be compelled to make good the damage in every way; for this is in accordance with good faith.
§47.2.62.4Sed in actione empti praecipue spectandum esse, qualem seruum uenditor repromiserit.
But in the action on purchase, it must especially be considered what kind of slave the seller promised.
§47.2.62.5Quod uero ad mandati actionem attinet, dubitare se ait, num aeque dicendum sit omni modo damnum praestari debere, et quidem hoc amplius quam in superioribus causis seruandum, ut, etiamsi ignorauerit is, qui certum hominem emi mandauerit, furem esse, nihilo minus tamen damnum decidere cogatur.
But as far as the action on mandate is concerned, he says he doubts whether it should equally be said that the damage must be made good in every way, and indeed that a broader rule than in the preceding cases must be observed, namely, that even if he who mandated the purchase of a certain slave was ignorant that he was a thief, he is nevertheless compelled to settle the damage.
iustissime enim procuratorem allegare non fuisse se id damnum passurum, si id mandatum non suscepisset: idque euidentius in causa depositi apparere.
For it is most just for the agent to allege that he would not have suffered that damage if he had not undertaken that mandate; and this appears more clearly in the case of deposit.
nam licet alioquin aequum uideatur non oportere cuiquam plus damni per seruum euenire, quam quanti ipse seruus sit, multo tamen aequius esse nemini officium suum, quod eius, cum quo contraxerit, non etiam sui commodi causa susceperit, damnosum esse, et sicut in superioribus contractibus, uenditione locatione pignore, dolum eius, qui sciens reticuerit, puniendum esse dictum sit, ita in his culpam eorum, quorum causa contrahatur, ipsis potius damnosam esse debere.
For although otherwise it may seem equitable that no one should suffer more damage through a slave than the value of the slave himself, it is nevertheless much more equitable that no one's service, which he undertook for the sake of the person with whom he contracted and not also for his own advantage, should be a source of loss to him; and just as in the preceding contracts—sale, hire, and pledge—it was said that the malice of him who knowingly kept silent should be punished, so in these cases the fault of those for whose sake the contract is made should rather be damaging to themselves.
nam certe mandantis culpam esse, qui talem seruum emi sibi mandauerit, et similiter eius qui deponat, quod non fuerit diligentior circa monendum, qualem seruum deponeret.
For surely it is the fault of the mandator who mandated the purchase of such a slave for himself, and similarly of him who deposits, because he was not more diligent in warning what kind of slave he was depositing.
§47.2.62.6Circa commodatum autem merito aliud existimandum, uidelicet quod tunc eius solius commodum, qui utendum rogauerit, uersetur.
But regarding loan for use, it is rightly thought otherwise, namely, because then the advantage of him alone who asked for the use is involved.
itaque eum qui commodauerit, sicut in locatione, si dolo quid fecerit non ultra pretium serui quid amissurum: quin etiam paulo remissius circa interpretationem doli mali debere nos uersari, quoniam, ut dictum sit, nulla utilitas commodantis interueniat.
Therefore, he who loaned, just as in hiring, if he did anything by malice, will lose nothing beyond the price of the slave; indeed, we ought to be somewhat more relaxed around the interpretation of malice, since, as has been said, no utility of the lender intervenes.
§47.2.62.7Haec ita puto uera esse, si nulla culpa ipsius, qui mandatum uel depositum susceperit, intercedat: ceterum si ipse ultro ei custodiam argenti forte uel nummorum commiserit, cum alioquin nihil umquam dominus tale quid fecisset, aliter existimandum est.
I think these things are true in this way if no fault of his own who undertook the mandate or deposit intervenes; but if he himself of his own accord entrusted to the slave the custody of silver or money, whereas otherwise the master would never have done any such thing, it must be judged otherwise.
§47.2.62.8Locaui tibi fundum, et (ut adsolet) conuenit, uti fructus ob mercedem pignori mihi essent.
I leased a tract of land to you, and (as is customary) it was agreed that the fruits should be pledged to me for the rent.
si eos clam deportaueris, furti tecum agere posse aiebat.
If you have secretly carried them away, he said that an action for theft could be brought against you.
sed et si tu alii fructus pendentes uendideris et emptor eos deportauerit, consequens erit, ut in furtiuam causam eos incidere dicamus.
But even if you have sold the hanging fruits to another and the buyer has carried them away, it will be a consequence that we should say they fall into the condition of stolen property.
etenim fructus, quamdiu solo cohaereant, fundi esse et ideo colonum, quia uoluntate domini eos percipere uideatur, suos fructus facere.
For indeed fruits, as long as they adhere to the soil, belong to the land, and therefore the tenant makes the fruits his own because he is deemed to gather them by the will of the master.
quod certe in proposito non aeque dicitur: qua enim ratione coloni fieri possint, cum emptor eos suo nomine cogat?
This certainly is not equally said in the case proposed; for by what reason could they become the tenant's, when the buyer gathers them in his own name?
§47.2.62.9Statuliberum, qui, si decem dederit, liber esse iussus erat, heres noxali iudicio defenderat: pendente iudicio seruus datis decem heredi ad libertatem peruenit: quaeritur, an non aliter absolutio fieri debeat, quam si decem, quae accepisset, heres actori dedisset.
A slave conditionally free, who was ordered to be free if he should give ten, had been defended by the heir in a noxal judgment; while the judgment was pending, the slave attained freedom by giving ten to the heir. The question is whether absolution ought not to be made otherwise than if the heir gave to the plaintiff the ten which he had received.
referre existimauit, unde ea pecunia data esset, ut, si quidem aliunde quam ex peculio, haec saltem praestet, quoniam quidem si nondum ad libertatem seruus peruenisset, noxae deditus ei, cui deditus esset, daturus fuerit: si uero ex peculio, quia nummos heredis dederit, quos utique is passurus eum non fuerit ei dare, contra statuendum.
He thought it mattered from where that money was given, so that, if indeed from elsewhere than from the peculium, the heir should at least pay this, since indeed if the slave had not yet attained freedom, being surrendered noxally, he would have given it to him to whom he was surrendered; but if from the peculium, because he gave the heir's own money, which certainly the plaintiff would not have allowed him to give to him, the contrary must be decided.