[IDEM libro tertio de iure fisci. ] §49.14.3.prNon intellegitur fraudem legi fecisse, qui rogatus est palam restituere.
[IDEM libro tertio de iure fisci.] One is not understood to have committed fraud against the law who is asked openly to restore.
sed cum quidam testamento suo ita scripsisset: 'uos rogo, ut in eo, quod a uobis peti, fidem praestetis: perque deum, ut faciatis, rogo' et quaereretur, an id palam datum intellegeretur: Iulianus respondit non quidem apparere, quid ab heredibus ex huiusmodi uerbis petitum est.
But when a certain person had written in his will: 'I ask you to show good faith in that which I requested of you; and I ask you by God to do so', and it was asked whether this was understood to have been given openly, Julian answered that it was indeed not clear what was requested of the heirs from such words.
quaeri autem solere, quando intellegatur quis in fraudem legis fidem suam accommodare: et fere eo iam decursum, ut fraus legi fieri uideatur, quotiens quis neque testamento neque codicillis rogaretur, sed domestica cautione et chirographo obligaret se ad praestandum ei qui capere non potest: ideoque dici posse ex supra dictis uerbis non esse legi fraudem factam.
But he said that it is usually asked when someone is understood to accommodate his good faith in fraud of the law; and today we have almost run to the point that fraud is seen to be committed against the law whenever someone was asked neither by will nor by codicil, but by a domestic guarantee and handwriting obligated himself to perform to one who cannot receive; and therefore from the above-mentioned words it can be said that fraud was not committed against the law.
§49.14.3.1Si quis palam rogatus et tacite esset, agitabatur, quid magis praeualeret: utrum id ipsum noceret, quod tacite rogatus esset, an prodesset, quod palam petitum esset.
If someone was asked both openly and tacitly, it was debated which should rather prevail: whether it was injurious in itself that he was asked tacitly, or beneficial that he was requested openly.
et diuus Hadrianus rescripsit in eo, quod cuiusque fidei palam commissum est, non esse existimandum fidem suam in fraudem legis accommodasse.
And the deified Hadrian wrote back that in that which is openly committed to anyone's good faith, he is not to be thought to have accommodated his good faith in fraud of the law.
§49.14.3.2Quando autem fraus interposita uideatur, agendum est, id est utrum exitus spectari deberet an consilium: forte si tunc, cum tacite fideicommittebatur, non capiebat is, cui restitui iubebatur, mortis uero tempore capere poterat, uel contra.
But when fraud is seen to have intervened, it must be discussed, that is, whether the outcome or the plan ought to be regarded: for example, if at the time when the tacit trust was made, he to whom it was ordered to be restored could not receive, but at the time of death he could receive, or vice versa.
et placuit exitum esse spectandum.
And it was decided that the outcome is to be regarded.
§49.14.3.3Tacita autem fideicommissa frequenter sic deteguntur, si proferatur chirographum, quo se cauisset cuius fides eligitur, quod ad eum ex bonis defuncti peruenerit, restituturum.
Tacit trusts, however, are frequently detected thus: if a handwriting is produced by which he whose good faith is chosen had bound himself that he would restore whatever came to him from the assets of the deceased.
sed et ex aliis probationibus manifestissimis idem fit.
But the same is also done from other most manifest proofs.
§49.14.3.4Cum ex causa taciti fideicommissi bona ad fiscum pertinent, omnia, quae in testamento utiliter data sunt, ualent: et ita diuus Pius rescripsit.
When from the cause of a tacit trust assets belong to the treasury, all things which were usefully given in the will are valid; and so the deified Pius wrote back.
§49.14.3.5Diui fratres recripserunt in uenditionibus fiscalibus fidem et diligentiam a procuratore exigendam et iusta pretia non ex praeterita emptione, sed ex praesenti aestimatione constitui: sicut enim diligenti cultura pretia praediorum ampliantur, ita, si neglegentius habita sint, minui ea necesse est
The deified brothers wrote back that in fiscal sales, good faith and diligence must be demanded from the procurator, and just prices are to be established not from the past purchase, but from the present valuation: for just as by diligent cultivation the prices of estates are increased, so, if they have been kept more neglectfully, it is necessary that they be diminished.
§49.14.3.6Cum quinquennium, in quo quis pro publico conductore se obligauit, excessit, sequentis temporis nomine non tenetur: idque principalibus rescriptis exprimitur.
When the five-year period in which someone obligated himself for a public lessee has expired, he is not held in the name of the subsequent time; and this is expressed in imperial rescripts.
diuus etiam Hadrianus in haec uerba rescripsit: 'Ualde inhumanus mos est iste, quo retinentur conductores uectigalium publicorum et agrorum, si tantidem locari non possint.
The deified Hadrian also wrote back in these words: 'That custom of yours is very inhuman, by which lessees of public taxes and lands are retained if they cannot be leased for the same amount.
nam et facilius inuenientur conductores, si scierint fore ut, si peracto lustro discedere uoluerint, non teneantur'.
For lessees will also be found more easily if they know that it will be that, if they wish to depart when the five-year period is completed, they will not be held'.
§49.14.3.7Si posteriori creditori fiscus successerit, eo iure utitur, quo is usurus erat, cui successit.
If the treasury succeeds a subsequent creditor, it uses the same right which he whom it succeeded was going to use.
§49.14.3.8Multa principalia sunt rescripta, quibus cauetur non aliter fiscum debitorum suorum debitores conuenire, nisi principales debitores defecerint, uel ex ratione fisci nomina facta liquido probentur, uel ex contractu fiscali debitores conueniantur.
There are many imperial rescripts in which it is provided that the treasury does not otherwise sue the debtors of its debtors, unless the principal debtors have failed, or the debts are clearly proved from the account of the treasury, or the debtors are sued based on a fiscal contract.
§49.14.3.9Diuus Hadrianus Flauio Proculo rescripsit, cum in libertatem proclamat qui ex bonis ad fiscum pertinentibus esse dicitur, iudicium dari praesentibus et agentibus etiam his, qui negotiis fisci solent interuenire: et huiusmodi liberales causae, si non interueniente fisci aduocato decisae sint, in integrum restituuntur.
The deified Hadrian wrote back to Flavius Proculus that when one who is said to belong to the assets pertaining to the treasury claims his freedom, a trial is to be granted while those who are accustomed to intervene in the business of the treasury are present and active; and liberal causes of this kind, if decided without the intervention of the advocate of the treasury, are restored to their original state.
§49.14.3.10Si in locis fiscalibus uel publicis religiosisue aut in monumentis thensauri reperti fuerint, diui fratres constituerunt, ut dimidia pars ex his fisco uindicaretur.
If treasures are found in fiscal or public or religious places, or in monuments, the deified brothers decreed that a half part of them should be claimed for the treasury.
item si in Caesaris possessione repertus fuerit, dimidiam aeque partem fisco uindicari.
Likewise, if it is found in Caesar's possession, a half part is equally claimed for the treasury.
§49.14.3.11Deferre autem se nemo cogitur, quod thensaurum inuenerit, nisi ex eo thensauro pars fisco debeatur.
But no one is compelled to report himself because he has found a treasure, unless a part of that treasure is owed to the treasury.
qui autem, cum in loco fisci thensaurum inuenerit, partem ad fiscum pertinentem suppresserit, totum cum altero tanto cogitur soluere.
But he who, having found a treasure in a place of the treasury, suppresses the part pertaining to the treasury, is compelled to pay the whole along with another equal amount.