[PAULUS libro tertio ad edictum. ] §9.4.4.prIn delictis seruorum scientia domini quemadmodum accipienda est? utrum cum consilio? an et si uiderit tantum, quamuis prohibere non potuerit? quid enim si ad libertatem proclamans domino sciente faciat aut qui contemnat dominum? uel cum trans flumen sit seruus, uidente quidem, sed inuito domino noxiam noceat? rectius itaque dicitur scientiam eius accipiendam, qui prohibere potest: et hoc in toto edicto intellegendum est circa scientiae uerbum. §9.4.4.1Si extraneus seruus sciente me fecerit eumque redemero, noxalis actio in me dabitur, quia non uidetur domino sciente fecisse, cum eo tempore dominus non fuerim.
[PAULUS, Book 3 on the Edict] In the delicts of slaves, how is the knowledge of the master to be understood? Is it with complicity? Or even if he merely saw it, although he was unable to forbid it? For what if a slave claiming his freedom does it with the knowledge of his master, or one who despises his master? Or when the slave is across the river, and does harm while the master indeed sees it but is against it? Therefore, it is more correctly said that the knowledge of him who is able to forbid it is to be understood; and this is to be understood in the whole Edict concerning the word "knowledge." If a third party's slave does something with my knowledge, and I purchase him, a noxal action will be granted against me, because he is not deemed to have done it with the knowledge of his master, since at that time I was not his master.
§9.4.4.2Cum dominus ob scientiam teneatur, an serui quoque nomine danda sit actio, uidendum est: nisi forte praetor unam poenam a domino exigi uoluit.
When the master is held liable on account of his knowledge, it must be considered whether an action should also be granted on account of the slave; unless perhaps the praetor wished only one penalty to be exacted from the master.
ergo dolus serui impunitus erit? quod est iniquum: immo utroque modo dominus tenebitur, una autem poena exacta, quam actor elegerit, altera tollitur.
Shall then the malice of the slave go unpunished? Which is unjust; rather, the master will be liable in both ways, but when one penalty, which the plaintiff has chosen, is exacted, the other is extinguished.
§9.4.4.3Si detracta noxae deditione quasi cum conscio domino actum sit, qui non erat conscius: absolutione facta et finito iudicio amplius agendo cum noxae deditione exceptione rei iudicatae summouebitur, quia res in superius iudicium deducta et finita est.
If, without the clause of noxal surrender, an action has been brought against a master as if he were aware, when he was not aware: after absolution has been granted and the trial is finished, any further action with noxal surrender will be barred by the plea of res judicata, because the matter was brought into the former trial and finished.
donec autem prius iudicium agitatur, licentia agenti est, si eum de scientia domini arguenda paeniteat, tunc ad noxalem causam transire.
However, as long as the first trial is being prosecuted, the plaintiff has the liberty, if he regrets trying to prove the knowledge of the master, to transfer then to a noxal case.
contra quoque si cum eo qui scit cum noxae deditione actum sit, amplius in dominum detracta noxae deditione danda actio non est: in ipso autem iudicio si uoluerit et scientiam domini arguere, non est prohibendus.
Conversely also, if an action with noxal surrender has been brought against one who has knowledge, no further action without noxal surrender is to be granted against the master; but if, in the trial itself, he wishes also to prove the knowledge of the master, he must not be forbidden.