[ULPIANUS libro quinto decimo ad edictum. ] §5.3.25.prSed et si lege commissoria uendidit, idem erit dicendum lucrum, quod sensit lege commissoria, praestaturum.
[ULPIANUS in the fifteenth book on the Edict.] But also if he has sold under a lex commissoria, the same must be said, that he will have to hand over the profit which he obtained under the lex commissoria.
§5.3.25.1Item si rem distraxit et ex pretio aliam rem comparauit, ueniet pretium in petitionem hereditatis, non res quam in patrimonium suum conuertit.
Likewise, if he has sold a thing and with the price purchased another thing, the price, not the thing which he converted into his own patrimony, will come into the petition for inheritance.
sed si res minoris ualet quam comparata est, hactenus locupletior factus uidebitur, quatenus res ualet: quemadmodum si consumpsisset, in totum locupletior factus non uidebitur.
But if the thing is worth less than the price for which it was purchased, he will be deemed to have been made richer only to the extent of the value of the thing; just as if he had consumed it, he would not be deemed to have been made richer at all.
§5.3.25.2Quod ait senatus: 'eos qui bona inuasissent, quae scirent ad se non pertinere, etiam si ante litem contestatam fecerint quo minus possiderent, perinde condemnandos quasi possiderent', ita intellegendum est, ut et dolus praeteritus in petitionem hereditatis deduceretur: sed et culpa.
What the senate said: 'those who have invaded property which they knew did not belong to them, even if before the joinder of issue they have acted so as to cease to possess, are to be condemned just as if they possessed,' is to be understood in such a way that past fraud is brought into the petition for inheritance; but also negligence.
et ideo ab eo qui ab alio non exegit uel a semet ipso, si tempore esset liberatus, peti hereditatem posse: hoc utique si exigere potuit.
And therefore, the inheritance can be claimed from one who has not collected from another, or from himself, if he had been released by lapse of time; this, at any rate, if he was able to collect.
§5.3.25.3Quod autem ait senatus 'eos qui bona inuasissent', loquitur de praedonibus, id est de his qui, cum scirent ad se non pertinere hereditatem, inuaserunt bona, scilicet cum nullam causam haberent possidendi.
Moreover, what the senate said as 'those who have invaded property,' refers to plunderers, that is, to those who, knowing that the inheritance did not belong to them, invaded the property, namely when they had no cause for possessing.
§5.3.25.4Sed et fructus non quos perceperunt, inquit, sed quos percipere debuerunt, eos praestaturos.
But also, it says, they shall restore not the fruits which they collected, but those which they ought to have collected.
§5.3.25.5De eo autem loquitur senatus, qui ab initio mente praedonis res hereditarias adprehendit.
However, the senate speaks of him who from the beginning seized the hereditary property with the mind of a plunderer.
quod si ab initio quidem iustam causam habuit adipiscendae possessionis, postea uero conscius ad se nihil hereditatem pertinere praedonio more uersari coepit, nihil senatus loqui uidetur: puto tamen et ad eum mentem senatus consulti pertinere: parui etenim refert, ab initio quis dolose in hereditate sit uersatus an postea hoc facere coepit.
But if indeed at the beginning he had a just cause for acquiring possession, but afterwards, becoming aware that the inheritance did not belong to him at all, began to behave in the manner of a plunderer, the senate seems to say nothing; yet I think that the intention of the senatus consultum also applies to him, for indeed it matters little whether someone was engaged in the inheritance with fraud from the beginning, or began to do so afterwards.
§5.3.25.6Scire ad se non pertinere utrum is tantummodo uidetur, qui factum scit, an et is qui in iure errauit? putauit enim recte factum testamentum, cum inutile erat: uel cum eum alius praecederet adgnatus, sibi potius deferri.
Does knowing that it does not belong to oneself seem to apply only to him who knows the fact, or also to him who erred in law? For instance, he thought the will was validly made when it was useless, or when another agnate preceded him, he thought it was deferred to himself instead.
et non puto hunc esse praedonem qui dolo caret, quamuis in iure erret.
And I do not think that he is a plunderer who lacks fraud, even if he errs in law.
' §5.3.25.7Si ante litem contestatam', inquit, 'fecerit': hoc ideo adiectum, quoniam post litem contestatam omnes incipiunt malae fidei possessores esse, quin immo post controuersiam motam.
'If he has acted before the joinder of issue,' it says. This was added because after the joinder of issue all possessors begin to be of bad faith, or rather, indeed, after the dispute has been raised.
quamquam enim litis contestatae mentio fiat in senatus consulto, tamen et post motam controuersiam omnes possessores pares fiunt et quasi praedones tenentur.
For although mention is made of the joinder of issue in the senatus consultum, nevertheless, even after the dispute has been raised, all possessors become equal and are held liable just as plunderers.
et hoc iure hodie utimur: coepit enim scire rem ad se non pertinentem possidere se is qui interpellatur.
And we use this rule today; for he who is summoned begins to know that he possesses a thing not belonging to him.
qui uero praedo est, et ante litem contestatam doli nomine tenebitur: hic est enim dolus praeteritus.
But he who is a plunderer will be held liable on account of fraud even before the joinder of issue; for this is past fraud.
' §5.3.25.8Perinde', inquit, 'condemnandos quasi possiderent': merito: nam is qui dolo fecit quo minus possideret, ut possessor condemnatur.
'Just as if they possessed, they are to be condemned,' it says. Justly so; for he who by fraud has acted so as not to possess is condemned as a possessor.
accipies, siue dolo desierit possidere siue dolo possessionem noluerit admittere.
You will understand this whether he has ceased to possess by fraud, or by fraud has refused to accept possession.
siue autem ab alio res possideatur siue in totum non extet, locum habebit haec clausula.
Furthermore, whether the thing is possessed by another, or does not exist at all, this clause will apply.
unde si sit alius possessor, ab utroque hereditas peti possit: et si per multos ambulauerit possessio, omnes tenebuntur.
Thus, if there is another possessor, the inheritance can be claimed from both; and if the possession has passed through many hands, all will be held liable.
§5.3.25.9Sed utrum is solus qui possidet fructus praestabit an etiam is qui dolo fecit quo minus possideret? et dicendum erit post senatus consultum ambo teneri.
But does he alone who possesses restore the fruits, or also he who by fraud acted so as not to possess? And it must be said that after the senatus consultum both are held liable.
§5.3.25.10Haec uerba senatus consulti etiam aduersus eum qui non possidet iusiurandum inducunt: tam enim aduersus eum qui dolo fecit quo minus possideat quam aduersus possidentem in litem iuratur.
These words of the senatus consultum introduce the oath even against him who does not possess; for the oath as to the value of the suit is taken both against him who by fraud acted so as not to possess, and against the possessor.
§5.3.25.11Consuluit senatus bonae fidei possessoribus, ne in totum damno adficiantur, sed in id dumtaxat teneantur, in quo locupletiores facti sunt.
The senate took thought for bona fide possessors, so that they should not be affected by loss to the full extent, but should be held liable only to the extent that they have been made richer.
quemcumque igitur sumptum fecerint ex hereditate, si quid dilapidauerunt perdiderunt, dum re sua se abuti putant, non praestabunt.
Therefore, whatever expense they have made from the inheritance, if they have squandered or lost anything while thinking they were using their own property, they shall not restore it.
nec si donauerint, locupletiores facti uidebuntur, quamuis ad remunerandum sibi aliquem naturaliter obligauerunt.
Nor if they have donated, will they be deemed to have been made richer, although they have naturally obligated someone to remunerate them.
plane si ἀντίδωρα acceperunt, dicendum est eatenus locupletiores factos, quatenus acceperunt: uelut genus quoddam hoc esset permutationis.
Clearly, if they received counter-gifts, it must be said that they have been made richer to the extent that they received them; as if this were a certain kind of exchange.