[ULPIANUS libro quinto decimo ad edictum. ] §5.3.20.9In priuatorum quoque petitionibus senatus consultum locum habere nemo est qui ambigit, licet in publica causa factum sit.
[ULPIANUS in the fifteenth book on the Edict] There is no one who doubts that the senatusconsultum has application also in the petitions of private persons, although it was made in a public cause.
§5.3.20.10Non solum autem in hereditate utimur senatus consulto, sed et in peculio castrensi uel alia uniuersitate.
Moreover, we use the senatusconsultum not only in respect of an inheritance, but also in respect of a peculium castrense or any other aggregate of goods.
' §5.3.20.11Petitam autem hereditatem' et cetera: id est ex quo quis scit a se peti: nam ubi scit, incipit esse malae fidei possessor.
'But the claimed inheritance' and so forth: that is, from the time when one knows that it is claimed from him; for when he knows, he begins to be a possessor in bad faith.
'id est cum primum aut denuntiatum esset': quid ergo si scit quidem, nemo autem ei denuntiauit, an incipiat usuras debere pecuniae redactae? et puto debere: coepit enim malae fidei possessor esse.
'that is, when it was first either notified': what then if he indeed knows, but no one has notified him, does he begin to owe interest on the realized money? And I think he does; for he has begun to be a possessor in bad faith.
sed ponamus denuntiatum esse, non tamen scit, quia non ipsi, sed procuratori eius denuntiatum est: senatus ipsi denuntiari exigit et ideo non nocebit, nisi forte is cui denuntiatum est eum certiorauerit, sed non si certiorare potuit nec fecit.
But let us suppose that notification has been made, yet he does not know, because it was notified not to him, but to his procurator: the senate requires notification to be made to himself, and therefore it will not prejudice him, unless by chance the person to whom it was notified informed him, but not if he could have informed him and did not.
a quo denuntiatum est senatus non exigit: quicumque ergo fuit qui denuntiauit, nocebit.
The senate does not require by whom the notification was made; therefore, whoever it was that gave the notice, it will prejudice.
§5.3.20.12Haec aduersus bonae fidei possessores, nam ita senatus locutus est: 'eos qui se heredes existimassent'.
These things are against possessors in good faith, for thus the senate spoke: 'those who had thought themselves to be heirs'.
ceterum si quis sciens ad se hereditatem non pertinere distraxit, sine dubio non pretia rerum, sed ipsae res ueniunt in petitionem hereditatis et fructus earum.
But if anyone, knowing that the inheritance did not belong to him, has sold it, without doubt not the prices of the things, but the things themselves and their fruits come into the petition for inheritance.
sed imperator Seuerus epistula ad Celerem idem uidetur fecisse et in malae fidei possessoribus: atquin senatus de his est locutus qui se heredes existimant. nisi forte ad eas res referemus, quas distrahi expedierat, quae onerabant magis hereditatem quam fructui erant: ut sit in arbitrio petitoris, qualem computationem faciat aduersus malae fidei possessorem, utrum ipsius rei et fructuum an pretii et usurarum post motam controuersiam.
But the Emperor Severus, in a letter to Celer, seems to have done the same also in the case of possessors in bad faith; and yet the senate spoke of those who think themselves heirs. unless by chance we refer this to those things which it was expedient should be sold, which burdened the inheritance rather than being of benefit to it; so that it may be in the discretion of the claimant what kind of calculation he makes against a possessor in bad faith, whether of the thing itself and the fruits, or of the price and interest after the controversy was moved.
§5.3.20.13Licet autem senatus de his locutus sit, qui se heredes existiment, tamen et si bonorum possessores se existiment uel alios successores iustos uel sibi restitutam hereditatem, in eadem erunt condicione.
And although the senate spoke of those who think themselves heirs, nevertheless, even if they think themselves to be possessors of goods or other lawful successors, or that the inheritance has been restored to them, they will be in the same position.
§5.3.20.14Papinianus autem libro tertio quaestionum, si possessor hereditatis pecuniam inuentam in hereditate non attingat, negat eum omnino in usuras conueniendum.
But Papinian, in the third book of his Questions, denies that if a possessor of an inheritance does not touch the money found in the inheritance, he is to be sued for interest at all.
' §5.3.20.15Redactae', inquit, 'pecuniae ex pretio rerum uenditarum. ' redactam sic accipiemus, non solum iam exactam, uerum et si exigi potuit nec exacta est.
The senate says: 'of the money realized from the price of the sold things.' We shall understand 'realized' thus, not only as what has already been collected, but also if it could have been collected and was not.
§5.3.20.16Quid si post petitam hereditatem res distraxerit? hic ipsae res uenient fructusque earum.
What if he has sold the things after the inheritance was claimed? Here, the things themselves and their fruits will come.
sed si forte tales fuerunt, quae uel steriles erant uel tempore periturae, et hae distractae sunt uero pretio, fortassis possit petitor eligere, ut sibi pretia et usurae praestentur.
But if by chance they were such things as were either sterile or destined to perish with time, and these have been sold for a fair price, perhaps the claimant may be able to elect that the prices and interest be paid to him.
§5.3.20.17Ait senatus: 'placere, a quibus petita hereditas fuisset, si aduersus eos iudicatum esset, pretia, quae ad eos rerum ex hereditate uenditarum peruenissent, etsi ante petitam hereditatem deperissent deminutaeue essent, restituere debere. ' bonae fidei possessor si uendiderit res hereditarias, siue exegit pretium siue non, quia habet actionem, debebit pretium praestare: sed ubi habet actionem, sufficiet eum actiones praestare.
The senate says: 'it is resolved that those from whom the inheritance had been claimed, if judgment was given against them, ought to restore the prices which came to them from the sold things of the inheritance, even if those things had perished or been deteriorated before the inheritance was claimed.' If a possessor in good faith has sold hereditary things, whether he has collected the price or not, because he has an action, he ought to pay the price; but where he has an action, it will be sufficient for him to yield the actions.
§5.3.20.18Sed si uendidit et euicta re restituit quod accepit, non uidebitur ad eum peruenisse: quamquam possit dici nec ab initio pretium uenire, quia non fuit res hereditaria quae distracta est: sed etsi senatus rerum ex hereditate distractarum, non hereditariarum fecit mentionem, restitui tamen non debet, quia nihil apud eum remanet.
But if he has sold and, the thing having been evicted, restored what he received, it will not be seen to have come to him; although it could be said that not even from the beginning does the price come, because it was not a hereditary thing which was sold; but even if the senate made mention of things sold 'from' the inheritance, not 'hereditary' things, nevertheless it ought not to be restored, because nothing remains with him.
nam et Iulianus libro sexto digestorum scribit quod indebitum exegit restituere eum non debere nec imputaturum quod non debitum soluit.
For objectors, Julian also writes in the sixth book of his Digests that he ought not to restore what he collected which was not due, nor will he impute what he paid which was not due.
§5.3.20.19Sed si res sit redhibita, hic utique et hereditaria est et pretium non ueniet quod refusum est.
But if the thing has been returned, here at all events it is both hereditary and the price which was refunded will not come.
§5.3.20.20Sed et si ob uenditionem obstrictus sit emptori possessor hereditatis, dicendum erit prospici ei, cautione.
Moreover, if on account of the sale the possessor of the inheritance is bound to the buyer, it must be said that he should be secured by a caution.
§5.3.20.21Restituere autem pretia debebit possessor, etsi deperditae sunt res uel deminutae.
But the possessor ought to restore the prices, even if the things have perished or been deteriorated.
sed utrum ita demum restituat, si bonae fidei possessor est, an et si malae fidei? et si quidem res apud emptorem exstent nec deperditae nec deminutae sunt, sine dubio ipsas res debet praestare malae fidei possessor aut, si recipere eas ab emptore nullo modo possit, tantum quantum in litem esset iuratum. at ubi deperditae sunt et deminutae, uerum pretium debet praestari, quia si petitor rem consecutus esset, distraxisset et uerum pretium rei non perderet.
But does he restore them only if he is a possessor in good faith, or also if in bad faith? And if indeed the things exist with the buyer and have neither perished nor been deteriorated, without doubt the possessor in bad faith ought to provide the things themselves, or, if he can in no way recover them from the buyer, as much as would be sworn to in the suit. but where they have perished and been deteriorated, the true price ought to be paid, because if the claimant had obtained the thing, he would have sold it and would not have lost the true price of the thing.