De usuris et fructibus et causis et omnibus accessionibus et mora
(Concerning Interests, Profits, Additions, and All Accessories and Default.)
1 Papinianus libro secundo quaestionum. Cum iudicio bonae fidei disceptatur, arbitrio iudicis usurarum modus ex more regionis ubi contractum est constituitur, ita tamen, ut legi non offendat. 1Socius si ideo condemnandus erit, quod pecuniam communem invaserit vel in suos usus converterit, omnimodo etiam mora non interveniente praestabuntur usurae. 2Nec tamen iudex iudicii bonae fidei recte iubebit interponi cautiones, ut, si tardius sententiae condemnatus paruerit, futuri temporis pendantur usurae, cum in potestate sit actoris iudicatum exigere. Paulus notat: quid enim pertinet ad officium iudicis post condemnationem futuri temporis tractatus? 3Papinianus. Circa tutelae restitutionem pro favore pupillorum latior interpretatio facta est: nemo enim ambigit hodie, sive iudex accipiatur, in diem sententiae, sive sine iudice tutela restituatur, in eum diem quo restituit usuras praestari. plane si tutelae iudicio nolentem experiri tutor ultro convenerit et pecuniam optulerit eamque obsignatam deposuerit, ex eo tempore non praestabit usuras.
1 Papinianus, Questions, Book III. Where a judgment is rendered in good faith, the rate of interest is determined by the decision of the court, according to the custom of the place where the contract was made, provided the amount does not exceed that fixed by law. 1If a partner should have judgment rendered against him on account of his having misappropriated the funds of the partnership, and converted them to his own use, he must, by all means, pay interest on the same, even if he was not in default. 2However, a judge who is to preside in a bona fide action cannot properly order security to be given by the defendant that, if he loses the case, he will pay interest until the judgment is satisfied, since it is in the power of the plaintiff to cause execution to be issued. Paulus states in a note that it is not part of the duty of the judge to concern himself with what takes place after a decision has been rendered. 3Papinianus says a broader interpretation should be given with reference to restitution made by a guardian in favor of his ward. For no one now doubts that when a guardian renders his account he must pay interest up to the time that he makes restitution, whether the judge receives it up to the day that the decision was rendered, or whether this is done out of court. It is clear that where the ward declines to institute proceedings in an action on guardianship, and the guardian voluntarily enters into an agreement with him, tenders him the money, and deposits it in a sealed bag, he will not be liable for interest from that time.
2 Idem libro sexto quaestionum. Volgo receptum est, ut, quamvis in personam actum sit, post litem tamen contestatam causa praestetur: cuius opinionis ratio redditur, quoniam quale est, cum petitur, tale dari debet ac propterea postea captos fructus partumque editum restitui oportet.
2 The Same, Questions, Book VI. It is generally settled that although a personal action may be brought after issue has been joined, liability attaches to all the accessories to the property. The reason for this opinion is, that the property ought to be delivered in the same condition in which it was when suit was brought for its recovery, and therefore, that all crops that have been obtained, and any offspring born of slaves must be surrendered.
3 Idem libro vicesimo quaestionum. In fideicommissi persecutione, cum post iudicis sententiam moram fecisset heres, iussit imperator Marcus Antoninus, intermisso legitimo tempore quod condemnatis praestatur ut usque ad sententiam commoda fideicommissarius accipiat. quod decretum ita accipi oportet, si ante iudicis sententiam mora non intervenit: tametsi non facile evenire possit, ut mora non praecedente perveniatur ad iudicem: sed puta legis Falcidiae rationem intervenisse. ceterum si ante, quam ad iudicem perveniretur, in mora heres fuit, exinde fructuum praestandorum necessitate adstrictus qua tandem ratione, quoniam et sententia victus est, legitimi temporis spatio fructibus liberabitur, cum ea temporis intercapedo iudicato dilationem dare, non lucrum adferre debeat? 1In his quoque iudiciis, quae non sunt arbitraria nec bonae fidei, post litem contestatam actori causa praestanda est in eum diem, quo sententia dicitur: certe post rem iudicatam tempus a fructibus dependendis immune est. 2Nonnumquam evenit, ut, quamquam fructus hereditatis aut pecuniae usura nominatim relicta non sit, nihilo minus debeatur. ut puta si quis rogetur post mortem suam quidquid ex bonis supererit Titio restituere: ut enim ea quae fide bona deminuta sunt in causa fideicommissi non deprehenduntur, si pro modo ceterorum quoque bonorum deminuantur, ita quod ex fructibus supererit iure voluntatis restitui oportebit. 3Cum Pollidius a propinqua sua heres institutus rogatus fuisset filiae mulieris quidquid ex bonis eius ad se pervenisset, cum certam aetatem puella complesset, restituere, idque sibi mater ideo placuisse testamento comprehendisset, ne filiae tutoribus, sed potius necessitudini res committerentur, eundemque Pollidium fundum retinere iussisset: praefectis praetorii suasi fructus, qui bona fide a Pollidio ex bonis defunctae percepti essent, restitui debere, sive quod fundum ei tantum praelegaverat sive quod lubrico tutelae fideicommissi remedium mater praetulerat. 4Si auro vel argento facto per fideicommissum relicto mora intervenerit, an usurarum aestimatio facienda sit, tractari solet. plane si materiam istam ideo relinquit, ut ea distracta pecuniaque refecta fideicommissa solverentur aut alimenta praestarentur, non oportere frustrationem impunitam esse responderi oportet: quod si forte ideo relinquit, ut his vasis uteretur, non sine rubore desiderabuntur usurae ideoque non exigentur.
3 The Same, Questions, Book XX. In the case of a demand made upon a surety where an heir was in default after a judicial decision had been rendered, the Emperor Marcus Antoninus ordered that where the time established by law in favor of parties who had lost their cases had elapsed, the surety could recover everything which had been acquired by his principal up to the time of the judgment. This decree must be understood to apply where the party had not been in default before the decision of the judge, although it cannot readily happen that recourse may be had to the court where default has not previously taken place; for instance, where the principle of the Lex Falcidia becomes applicable. If, however, the heir is in default before application is made to the judge, he being liable for the delivery of the profits from that time; for which reason, as he has already lost the case, will he be released from liability for the profits after the lapse of the time fixed by law, since that period is granted him for the purpose of satisfying the judgment, and not for obtaining any advantage for himself? 1In proceedings of this kind which are not subject to arbitration, and are not bona fide actions, after issue has been joined, everything connected with the property for which suit is brought must be delivered to the plaintiff, up to the time of the judgment. It is certain that the party will be free from liability for the profits after a decision has been rendered. 2It sometimes happens that although the profits of an estate or the interest on money is not expressly bequeathed, it is, nevertheless due; as, for example, where anyone requests that any of his property should be left after his death, it shall be delivered to Titius; for as diminutions made in good faith are not included in this trust, if proportionate diminutions of other property should have taken place, any remaining profits must be given up in accordance with the will of the testator. 3Pollidius, having been appointed heir to one of his female relatives, was asked by her to deliver to the daughter of the woman, when she had reached a certain age, any property belonging to her estate which might come into his hands; and the mother stated in her will that she had decided upon this step to prevent the property from being placed under the control of guardians, and that she preferred that a near relative should have charge of it. She directed the said Pollidius to retain a certain tract of land for himself, and I stated to the Prætorian Prefect that all the profits which had been acquired in good faith from the property of the deceased by Pollidius should be delivered, not only because the mother had left to him the tract of land, but also for the reason that she had preferred this method of creating a trust to the less reliable one of guardianship. 4Where manufactured gold or silver is left in trust, and default takes place, a discussion usually arises as to whether an estimate of interest should be made. It is evident that if the testator left the metal of which the articles were composed with the intention that it should be sold, and the trust discharged by means of the money obtained, or that maintenance should be furnished; it must be held that any fraudulent conduct of the heir should not go unpunished. If, however, the testator left the vases to be used by his heir, it would be improper for interest to be demanded, and therefore it can not be exacted.
4 Idem libro vicesimo septimo quaestionum. Si stipulatus sis rem dari vacuamque possessionem tradi, fructus postea captos actione incerti ex stipulatu propter inferiora verba consecuturum te ratio suadet. an idem de partu ancillae responderi possit, considerandum est. nam quod ad verba superiora pertinet, sive factum rei promittendi sive effectum per traditionem dominii transferendi continent, partus non continetur: verum si emptor a venditore novandi animo ita stipulatus est, factum tradendi stipulatus intellegitur, quia non est verisimile plus venditorem promississe, quam iudicio empti praestare compelleretur. sed tamen propter illa verba ‘vacuamque possessionem tradi’ potest dici partus quoque rationem committi incerti stipulatione: etenim ancilla tradita partum postea editum in bonis suis reus stipulandi habere potuisset. 1Si post contractam emptionem ante interpositam stipulationem partus editus aut aliquid per servum venditori adquisitum est, quod ex stipulatu consequi non poterit, iudicio empti consequitur: id enim quod non transfertur in causam novationis iure pristino peti potest.
4 The Same, Questions, Book XXVII. If you make a stipulation, “For property to be given to you, and complete possession of the same to be delivered,” reason suggests that you should afterwards obtain the profits of said property which have been collected by having recourse to a general action on stipulation, on account of the last words of the clause. It should be considered whether the same rule will apply to the offspring of a female slave in a case of this kind; for, with reference to the first words of the clause, whether they relate to the fact of the property being promised, or to the effect of the delivery by the transfer of ownership, offspring is not included. But if the purchaser, with the intention of renewing the obligation, stipulated with the vendor in this way, the fact of the delivery was understood to be agreed upon, for the reason that it is not probable that the vendor promised more than he would be compelled to furnish in an action on purchase. Still, on account of the words, “And complete possession to be delivered,” it can be held that the accounting for the offspring becomes operative on account of the stipulation being general in its character; for after the female slave has been delivered, the party to the stipulation would be entitled to include any child subsequently born on his premises. 1Where a child is born to a female slave after the sale has been contracted, but before the stipulation has been entered into, or any property is acquired by the vendor through the agency of the slave, he can recover it by means of an action on purchase; but he cannot do so by means of an action based on the stipulation, for whatever is not transferred to a new obligation can be recovered under the former right.
5 Idem libro vicesimo octavo quaestionum. Generaliter observari convenit bonae fidei iudicium non recipere praestationem, quae contra bonos mores desideretur.
5 The Same, Questions, Book XXVIII. It is proper to generally state that, in a bona fide action, no guarantee which is contrary to good morals will be accepted.
6 Idem libro vicesimo nono quaestionum. Cum de in rem verso cum herede patris vel domini ageretur et usurarum quaestio moveretur, imperator Antoninus ideo solvendas usuras iudicavit, quod eas ipse dominus vel pater longo tempore praestitisset. 1Imperator quoque noster Severus filiae Flavii Athenagorae, cuius bona fuerant publicata, de fisco ideo numerari decies centena dotis nomine iussit, quod ea patrem praestitisse dotis usuras allegasset.
6 The Same, Questions, Book XXIX. Where a controversy arose with an heir, which had reference to a transaction involving the property of a father or master, and the question of interest was discussed, the Emperor Antoninus decided that interest should be paid, for the reason that the master himself or the father had paid it for a long time. 1Our Emperor Severus also ordered that the sum of ten thousand sesterces should be paid out of the Treasury by way of dowry, to the daughter of Flavius Athenagoras, whose property had been confiscated, because she alleged that her father had paid her interest on her dowry.
7 Idem libro secundo responsorum. Debitor usurarius creditori pecuniam optulit et eam, cum accipere noluisset, obsignavit ac deposuit: ex eo die ratio non habebitur usurarum. quod si postea conventus ut solveret moram fecerit, nummi steriles ex eo tempore non erunt.
7 The Same, Opinions, Book II. A debtor, who owed a sum of money bearing interest, tendered the amount to his creditor, and when the latter refused to accept it, he placed it in a bag, and sealed and deposited it. Reason demands that from this day there should be no interest due. If, however, suit should afterwards be brought to compel the debtor to pay, and he should fail to do so, the money will not be idle from that time.
8 Idem libro septimo responsorum. Equis per fideicommissum relictis post moram fetus quoque praestabitur ut fructus, sed fetus secundus ut causa, sicut partus mulieris.
8 The Same, Opinions, Book VII. Where horses have been left in trust, after default, the first foal must be furnished as profit, but a second one as accessory, just as in the case of the offspring of a female slave.
9 Idem libro undecimo responsorum. Pecuniae faenebris, intra diem certum debito non soluto, dupli stipulatum in altero tanto supra modum legitimae usurae respondi non tenere: quare pro modo cuiuscumque temporis superfluo detracto stipulatio vires habebit. 1Usurarum stipulatio, quamvis debitor non conveniatur, committitur. nec inutilis legitimae usurae stipulatio videtur sub ea condicione concepta ‘si minores ad diem solutae non fuerint’: non enim poena, sed faenus uberius iusta ratione sortis promittitur. si tamen post mortem creditoris nemo fuit cui pecunia solveretur, eius temporis inculpatam esse moram constitit: ideo si maiores usurae prioribus petantur, exceptio doli non inutiliter opponetur.
9 The Same, Opinions, Book XI. Where money was lent at interest, and double the amount was contracted for if it should not be paid within a certain time; I gave the opinion that the debtor is not liable for anything more than the legal rate of interest; hence the stipulation will be operative in proportion to the time which has elapsed after a deduction has been made of the surplus interest. 1The stipulation for interest becomes operative even though the debtor may not be sued; nor is a stipulation for legal interest held to be void where it is made under the condition that it will be due if interest at a lower rate should not be paid at the appointed time, for it is not a penalty, but a higher rate of interest that is promised for a lawful reason. Where, however, there was no one to whom the money could be paid after the death of the creditor, it is established that the debtor is not in default during that time. Therefore, if a higher rate of interest is demanded, and was agreed upon in the first place, an exception on the ground of bad faith can properly be interposed.
10 Paulus libro secundo quaestionum. Partum post litem contestatam editum restituere possessor debet: quem non deberet restituere, si, cum mater peteretur, iam natus fuisset, nisi specialiter et pro hoc egisset.
10 Paulus, Questions, Book II. The possessor should surrender a child born to a female slave after issue has been joined, but he is not obliged to give it up if it was born before proceedings were instituted for the recovery of the mother, unless the plaintiff expressly brought the suit for said child.
11 Idem libro vicesimo quinto quaestionum. Gaius Seius qui rem publicam gerebat faeneravit pecuniam publicam sub usuris solitis: fuit autem consuetudo, ut intra certa tempora non inlatis usuris graviores infligerentur: quidam debitores cessaverunt in solvendis usuris, quidam plus intulerunt et sic effectum est, ut omne quod usurarum nomine competebat etiam pro his, qui cessaverant in usuris, suppleatur. quaesitum est, an illud, quod amplius ex consuetudine poenae nomine a quibusdam exactum est, ipsi Seio proficere deberet an rei publicae lucro cederet. respondi, si Gaius Seius a debitoribus usuras stipulatus esset, eas solas rei publicae praestari oportere, quae secundum formam ab is exigi solent, etiamsi non omnia nomina idonea sint. 1Quid si servus publicus obligationem usurarum rei publicae adquisiit? aequum est, quamvis ipso iure usurae rei publicae debeantur, tamen pro defectis nominibus compensationem maiorum usurarum fieri, si non sit parata res publica universorum debitorum fortunam suscipere. eadem fere in tutoribus Marcellus refert.
11 The Same, Questions, Book XXV. Gaius Seius, who was in the habit of transacting public business, lent money belonging to the Government at the ordinary rate of interest, but the custom existed to exact a higher rate where the interest was not paid within a certain time. Some of the debtors were in default in paying their interest, others paid more than they owed, and the result was that everything due by way of interest was made up, even that of those who had failed to pay anything. The question arose whether the surplus interest which was collected from some of the debtors, by way of penalty, according to the prevalent custom, should profit Seius himself, or should enure to the benefit of the Government? I answered that if Gaius Seius stipulated for interest from the debtors, that alone must be paid to the Government which, according to the rule, it was customary to collect from them, even though all the claims were good. 1What if a public slave should have obtained an obligation bearing interest for the benefit of the Government? It is just that, although by law this interest should be due to the Government, still, on account of certain claims which are bad, a set-off of the surplus interest should be made, if the Government was not prepared to seize the property of all the debtors. Marcellus states almost the same opinion with reference to guardians.
12 Idem libro quarto responsorum. Seia mutuam pecuniam accepit a Septicio: de usuris ita convenit: nisi sua quaque die usurae supra scriptae exsolverentur vel post tertium mensem, tunc in maiores usuras Seia teneretur, et deinceps per singulas pensiones, si condicione data usurae non solverentur, ea condicio observaretur, donec omnis summa debita hoc nomine exsolveretur. quaero, an haec verba ‘et deinceps per singulas pensiones condicione data usurae non solvantur, ea condicio observaretur’ eo pertineant, ut, quamvis commissa sit forte prima stipulatio, non tamen in ampliorem quantitatem usurarum conveniri possit quam eius pensionis nomine, quae egressa est diem praestitutum. Paulus respondit plures condiciones continere eam stipulationem, quae de gravioribus usuris praestandis subiecta est, id est ut per singulas pensiones condicio inspectaretur non illatarum suis temporibus leviorum usurarum: et ideo posse evitari poenam sequentium pensionum.
12 The Same, Opinions, Book XII. Seia borrowed money from Septitius, and it was agreed with reference to the interest: “That unless the above-mentioned interest was paid at the different times specified, or within three months, Seia would then be liable for a higher rate, and afterwards, at each payment, if the interest was not forthcoming in accordance with the prescribed condition, the said condition should be observed until the entire sum due was paid.” I ask whether the following words, “And afterwards, at each payment, if the interest is not forthcoming, in accordance with the prescribed condition, the said condition shall be observed,” mean that even though the first stipulation may become operative, still, the debtor cannot be sued for a larger amount of interest than was due at the time appointed for the first payment, when she was in default. Paulus answered that the stipulation contains several conditions, and that it is subject to the payment of a higher rate of interest; that is to say, that the condition should be considered with reference to each payment of a lower rate of interest which should have been, but was not made at the proper time, and therefore that the penalty for subsequent payment could be avoided.
13 Scaevola libro primo responsorum. Qui semisses usuras promissit, per multos annos minores praestitit: heres creditoris semisses petit. cum per debitorem non steterit, quo minus minores solvat, quaero an exceptio doli vel pacti obstet. respondi, si exsolvendis ex more usuris per tanta tempora mora per debitorem non fuit, posse secundum ea, quae proponerentur obstare exceptionem. 1Quaesitum est, an iudicio negotiorum gestorum vel mandati pro pecunia otiosa usuras praestare debeat, cum dominus nullam pecuniam faeneravit. respondit, si eam pecuniam positam habuisset idque ex consuetudine mandantis fecisset, non debere quicquam usurarum nomine praestare.
13 Scævola, Opinions, Book I. Where a debtor promised to pay interest at six per cent, and for many years paid interest at a lower rate, and the heir of the creditor brought suit for six per cent, although the debtor had done nothing to avoid payment at the lower rate, I ask whether an exception on the ground of bad faith, or one based on the contract can be interposed? I answered that, if the debtor had not been in default in paying the lower rate of interest, according to his custom, for so long a time, an exception could be interposed in accordance with the facts stated. 1The question arose whether an agent should pay interest on idle money, if his principal was not in a habit of lending money at interest, where an action has been brought on the ground of voluntary agency, or on that of mandate? The answer was that, if he had held the money on deposit and had done this in accordance with the custom of the mandator, he would not be obliged to pay anything by way of interest.
14 Paulus libro quarto decimo responsorum. Respondit Paulus moram in solvendo fideicommisso factam partus quoque ancillarum restituendos. 1Heres rogatus erat post mortem suam sine reditu hereditatem restituere: quaesitum est, an partus ancillarum etiam vivo herede nati restituendi essent propter verba testamenti, quibus de reditu solo deducendo testator sensit. Paulus respondit ante diem fideicommissi cedentem partus ancillarum editos fideicommisso non contineri. Neratius libro primo ita refert eum, qui similiter rogatus esset, ut mulierem restitueret, partum eius restituere cogendum non esse, nisi tunc editus esset, cum in fideicommisso restituendo moram fecisset. neque interesse existimo, an ancilla specialiter an hereditas in fideicommisso sit.
14 Paulus, Opinions, Book XIV. Paulus gave it as his opinion that where a party is in default in discharging a trust, the offspring of female slaves must be given up. 1An heir was requested to surrender the estate to someone without the income from the same after his death. The question arose whether the offspring of female slaves, even if born during the lifetime of the heir, should be given up, on account of the words of the will by which the testator intended to indicate that the income alone of the estate should be reserved. Paulus answered that any children born to female slaves before the trust became operative, were not included therein. Neratius also says in the First Book that where an heir was requested to deliver a female slave he is not required to deliver her offspring, unless the child was born while he was in default in discharging the trust. Nor do I think that it makes any difference whether the female slave was the special object of the trust, or whether she was merely a part of the estate left in trust.
15 Idem libro sexto decimo responsorum. Respondit neque eorum fructuum, qui post litem contestatam officio iudicis restituendi sunt, usuras praestari oportere, neque eorum, qui prius percepti quasi malae fidei possessori condicuntur.
15 The Same, Opinions, Book XVI. Paulus holds that it is not necessary to pay interest on any profits acquired after issue has been joined, and which the judge, in the discharge of his duty, directs to be turned over, nor on those which have been collected before that time, and which are stated to have been fraudulently obtained by the possessor.
16 Idem libro primo decretorum. Liberalitatis in rem publicam factae usurae non exiguntur. 1Cum usurae pretii fundi ab eo qui a fisco emerat peterentur et emptor negaret traditam sibi possessionem, imperator decrevit iniquum esse usuras ab eo exigi, qui fructus non percepisset.
16 The Same, Decrees, Book I. Interest is not exacted on money given to the Government by way of liberality. 1When interest on the price of a tract of land was demanded of a party who had purchased it from the Treasury, and the purchaser denied that possession had been delivered to him; the Emperor ruled that it was unjust for interest to be exacted of one who had not gathered the crops.
17 Idem libro singulari de usuris. Cum quidam cavisset se quotannis quincunces usuras praestaturum et, si quo anno non solvisset, tunc totius pecuniae ex die qua mutuatus est semisses soluturum, et redditis per aliquot annos usuris mox stipulatio commissa esset, divus Marcus Fortunato ita rescripsit: ‘Praesidem provinciae adi, qui stipulationem, de cuius iniquitate questus est, ad modum iustae exactionis rediget’. haec constitutio ad finitum modum excedit: quid ergo? sic temperanda res est, ut in futurum dumtaxat ex die cessationis crescat usura. 1Divus Pius ita rescripsit: ‘Parum iuste praeteritas usuras petis, quas omisisse te longi temporis intervallum indicat, qui eas a debitore tuo, ut gratior apud eum videlicet esses, petendas non putasti’. 2In tacito fideicommisso omne emolumentum heredi auferendum et fisco praestandum divus Pius rescripsit: ergo et usurarum emolumentum aufertur heredi. 3Si pupillo non habenti tutorem fideicommissum solvi non potuit, non videri moram per heredem factam divus Pius rescripsit. ergo nec ei debetur, qui quod rei publicae causa afuit vel ex alia causa iusta impeditus, ex qua restitutio indulgetur, petere non potuit: quid enim potest imputari ei, qui solvere, etiamsi vellet, non potuit? nec simile videri posse, quod placuit minoribus etiam in his succurri quae non adquisierunt: usurae enim non propter lucrum petentium, sed propter moram solventium infliguntur. 4Ex locato qui convenitur, nisi convenerit ut tardius pecuniae illatae usuras deberet, non nisi ex mora usuras praestare debet. 5Fiscus ex suis contractibus usuras non dat, sed ipse accipit: ut solet a foricariis, qui tardius pecuniam inferunt, item ex vectigalibus. cum autem in loco privati successit, etiam dare solet. 6Si debitores, qui minores semissibus praestabant usuras, fisci esse coeperunt, postquam ad fiscum transierunt, semisses cogendi sunt praestare. 7Eos qui ex administratione rerum civitatium conveniuntur usuris obnoxios esse satis notum est. idem observatur in operum curatoribus, si pecunia apud eos remansit. sed in ea quam redemptoribus commisserunt, etiamsi neglegenter dederint, usura eis remittitur: haec autem ita sunt, si nulla fraus arguitur: alioquin etiam usurae adplicabuntur. 8Si dies non sit ab his, qui statuas vel imagines ponendas legaverunt, praefinitus, a praeside tempus statuendum est et nisi posuerint heredes, usuras rei publicae usque ad tertiam centesimae pendent.
17 The Same, On Interest. Where a man bound himself to pay interest at the rate of five per cent per annum, and if he failed to do so for any one year, he would then pay six per cent on the entire sum of money from the day on which he borrowed it, and after paying the interest for some years the stipulation finally became operative; the Divine Marcus stated in a Rescript addressed to Fortunatus: “Go to the Governor of the province who will reduce to the measure of its just requirements the stipulation whose injustice you complain of.” This Constitution far exceeds the proper limit. What course should then be pursued? The matter must be adjusted so that, in the future, the interest will only increase from the day of default. 1The Divine Pius stated in a Rescript: “You are claiming accrued interest due with very little justice, as the interval of a long time indicates that you have neglected to collect it, for the reason that you intended, by not demanding it from your debtor, to render yourself more agreeable to him.” 2In the case of an implied trust, the Divine Pius stated in a Rescript that the heir should be deprived of all profits, and that they should be turned over to the debtor; and therefore that the heir should be deprived of the benefit of the interest. 3Where a trust cannot be executed for the benefit of a ward because he has no guardian, the Divine Pius stated in a Rescript that the heir is not considered to be in default. Therefore, nothing is due to him who has been absent on public business, or has been prevented by any other just cause from bringing an action for restitution. For how can a party be to blame who cannot pay, even if he wishes to do so? The same principle does not apply in this case as in that where relief is given to minors who have failed to obtain an advantage, for interest is not imposed on account of the gain to the plaintiff, but because of the delay of those who should make payment. 4Where a party makes a contract with reference to a lease, unless it is agreed that interest shall be due on rent which is not promptly paid, the lessee will not be obliged to pay interest except in case of default. 5The Treasury does not pay interest on account of any contract entered into by it, but collects it; as is customary in the case of the keepers of public privies who are slow in paying their rent; and also in the case of those from whom taxes are due. But where the Treasury takes the place of a private individual, it is the custom for it also to pay interest. 6Where debtors pay interest under six per cent, and they then become debtors to the Treasury, after their obligations have been transferred to the Treasury, they will be compelled to pay six per cent. 7It is very well known that those who are sued on account of their mismanagement of public funds are liable to the payment of interest. The same rule is observed where persons have charge of public works, if money remains in their hands; but with reference to what they have paid to contractors, even though they paid it negligently, the interest will be remitted to them. This is the case, however, where no fraud exists, otherwise interest will also be due. 8Where no definite time has been specified by persons who have bequeathed statues or paintings to be erected or hung in some public place, the time shall be fixed by the Governor; and if the heirs do not comply, they must pay to the Government interest at the rate of one-third of one per cent a month.
18 Idem libro tertio responsorum. Evictis agris, si initio convenit, ut venditor pretium restitueret, usurae quoque post evictionem praestabuntur, quamvis emptor post dominii litem inchoatam fructus adversario restituit: nam incommodum medii temporis emptoris damnum est. 1Post traditam possessionem defuncto venditore, cui successor incertus fuit, medii quoque temporis usurae pretii, quod in causa depositi non fuit, praestabuntur.
18 The Same, Opinions, Book III. If it was agreed in the beginning that, in case of the eviction of certain lands, the vendor shall refund the price, interest must also be paid after eviction, even though the purchaser may have paid to his adversary all the profits collected after the action for the ownership of the property was begun; as any inconvenience sustained during the intermediate time must be borne by the purchaser. 1Where the vendor dies after possession has been delivered, and it is uncertain who his successor will be, the interest on the price must be paid if it was not placed on deposit.
19 Gaius libro sexto ad legem duodecim tabularum. Videamus, an in omnibus rebus petitis in fructus quoque condemnatur possessor. quid enim si argentum aut vestimentum aliamve similem rem, quid praeterea si usum fructum aut nudam proprietatem, cum alienus usus fructus sit, petierit? neque enim nudae proprietatis, quod ad proprietatis nomen attinet, fructus ullus intellegi potest, neque usus fructus rursus fructus eleganter computabitur. quid igitur, si nuda proprietas petita sit? ex quo perdiderit fructuarius usum fructum, aestimabuntur in petitione fructus. item si usus fructus petitus sit, Proculus ait in fructus perceptos condemnari. praeterea Gallus Aelius putat, si vestimenta aut scyphus petita sint, in fructu haec numeranda esse, quod locata ea re mercedis nomine capi potuerit. 1Iter quoque et actus si petitus sit, vix est ut fructus ulli possint aestimari, nisi si quis commodum in fructibus numeraret, quod habiturus esset petitor, si statim eo tempore quo petisset ire agere non prohiberetur: quod admittendum est.
19 Gaius, On the Law of the Twelve Tables, Book VI. Let us see whether judgment will also be rendered against the possessor in every case where suit is brought for the profits. For what if he should bring an action for silver, clothing, or anything else of this kind, or for the usufruct, or for the mere ownership of the property where the usufruct belongs to another? For no profit, to which this term can rightly be applied, can be understood to be derived from the mere ownership; nor, on the other hand can the usufruct properly be considered as profit. But what if an action is brought to recover the mere property? The profits will be included in the claim from the day that the usufructuary lost his usufruct. Moreover, if suit is brought for the usufruct, Proculus says that the defendant will have judgment rendered against him for all the profits which have been collected. Again, Gallus Ælius holds that if suit is brought for clothing, or a cup, whatever could be collected by way of rent, if the articles were leased, should be classed as profit. 1Where suit is brought to recover a right of way, it will be difficult for any profits resulting therefrom to be estimated, unless some advantage which the plaintiff could have enjoyed from the servitude should be classed as profits, if he was not prevented from doing so at the time that he brought the action; and this should be admitted as correct.
20 Paulus libro duodecimo ad Sabinum. Usuras illicitas sorti mixtas ipsas tantum non deberi constat, ceterum sortem non vitiare.
20 Paulus, On Sabinus, Book XII. It is settled that, where illegal interest is united with the principal, the said interest will not be due, but this does not affect the principal.
21 Ulpianus libro trigesimo quarto ad edictum. Sciendum est non omne, quod differendi causa optima ratione fiat, morae adnumerandum: quid enim si amicos adhibendos debitor requirat vel expediendi debiti vel fideiussoribus rogandis? vel exceptio aliqua allegetur? mora facta non videtur,
21 Ulpianus, On the Edict, Book XXXIV. It must be remembered that not everything which is done for a good reason in order to postpone payment should be considered as default. For what if the debtor desires his friends to be present, or his sureties to be summoned at the time that the debt is paid, or intends to offer some exception? It is not held that he is guilty of default;
22 Paulus libro trigesimo septimo ad edictum. si modo id ipsum non fraudandi causa simuletur.
22 Paulus, On the Edict, Book XXXVII. Provided this is not done deceitfully for the purpose of committing fraud.
23 Ulpianus libro trigesimo quarto ad edictum. Sed et si rei publicae causa abesse subito coactus sit, ut defensionem sui mandare non possit, moram facere non videbitur: sive in vinculis hostiumve potestate esse coeperit. 1Aliquando etiam in re moram esse decerni solet, si forte non exstat qui conveniatur.
23 Ulpianus, On the Edict, Book XXXIV. Where a debtor is suddenly compelled to be absent on public business, and cannot entrust his defence to anyone, he is not held to be in default; and this is the case where he is in the power of the enemy. 1Sometimes it is customary for a party to be considered to be in default where there is no one against whom suit can be brought.
24 Paulus libro trigesimo septimo ad edictum. Si quis solutioni quidem moram fecit, iudicium autem accipere paratus fuit, non videtur fecisse moram: utique si iuste ad iudicium provocavit. 1Cum reus moram facit, et fideiussor tenetur. 2Mora videtur creditori fieri, sive ipsi sive ei cui mandaverat sive ei qui negotia eius gerebat mora facta sit: nec hoc casu per liberam personam adquiri videtur, sed officium impleri, sicuti, cum quis furtum mihi facientem deprehendit, negotium meum agens manifesti furti actionem mihi parat: item cum procurator interpellaverit promissorem hominis, perpetuam facit stipulationem.
24 Paulus, On the Edict, Book XXXVII. Where anyone delays in making payment, but is ready to join issue in the suit, he is not held to be in default, at least if he has just cause for applying to the court. 1Where the principal debtor is in default, the surety is also liable. 2A debtor is in default to his creditor where he does not make payment either to the creditor himself or to someone whom he has directed to receive the money, or to him who is in the habit of transacting his business. In this instance it is not held that he acquires, anything through a free person, because these parties are only discharging their duties; just as where anyone arrests a thief in the act of stealing from me, he is transacting my business, and acquires for me a right of action for manifest theft. Again, where an agent makes a demand for a slave upon a promisor, he renders the stipulation perpetual.
25 Iulianus libro septimo digestorum. Qui scit fundum sibi cum alio communem esse, fructus, quos ex eo perceperit invito vel ignorante socio, non maiore ex parte suos facit quam ex qua dominus praedii est: nec refert, ipse an socius an uterque eos severit, quia omnis fructus non iure seminis, sed iure soli percipitur: et quemadmodum, si totum fundum alienum quis sciens possideat, nulla ex parte fructus suos faciet, quoquo modo sati fuerint, ita qui communem fundum possidet, non faciet suos fructus pro ea parte, qua fundus ad socium eius pertinebit. 1In alieno fundo, quem Titius bona fide mercatus fuerat, frumentum sevi: an Titius bonae fidei emptor perceptos fructus suos faciat? respondi, quod fructus qui ex fundo percipiuntur intellegi debet propius ea accedere, quae servi operis suis adquirunt, quoniam in percipiendis fructibus magis corporis ius ex quo percipiuntur quam seminis, ex quo oriuntur aspicitur: et ideo nemo umquam dubitavit, quin, si in meo fundo frumentum tuum severim, segetes et quod ex messibus collectum fuerit meum fieret. porro bonae fidei possessor in percipiendis fructibus id iuris habet, quod dominis praediorum tributum est. praeterea cum ad fructuarium pertineant fructus a quolibet sati, quanto magis hoc in bonae fidei possessoribus recipiendum est, qui plus iuris in percipiendis fructibus habent? cum fructuarii quidem non fiant, antequam ab eo percipiantur, ad bonae fidei autem possessorem pertineant, quoquo modo a solo separati fuerint, sicut eius qui vectigalem fundum habet fructus fiunt, simul atque solo separati sunt. 2Bonae fidei emptor sevit et antequam fructus perciperet, cognovit fundum alienum esse: an perceptione fructus suos faciat, quaeritur. respondi, bonae fidei emptor quod ad percipiendos fructus intellegi debet, quamdiu evictus fundus non fuerit: nam et servus alienus quem bona fide emero tamdiu mihi ex re mea vel ex operis suis adquiret, quamdiu a me evictus non fuerit.
25 Julianus, Digest, Book VII. A party who is aware that a tract of land is jointly owned by himself and another, and who gathers the crops from the same without the knowledge or consent of his fellow-owner, does not acquire a right to any greater portion of them than his interest in the land entitles him to. Nor does it make any difference whether he or his fellow-owner, or both of them, sow the seed, for the ownership of every kind of crop is acquired, not through the right to the seed, but through that to the soil; and just as where a party who knowingly has possession of a tract of land belonging to another, cannot acquire the ownership of any part of the crop, no matter in what way the land has been sown; so also, he who has possession of land belonging to himself and another, will acquire no right to the crop on that portion of the land which belongs to his fellow-owner. 1I sowed wheat on land belonging to another which Titius had bought in good faith; will Titius, the bona fide purchaser, have a right to the crop after it has been harvested? I answered that the profits obtained from a tract of land should be understood to closely resemble those which slaves acquire by their labor; for in gathering crops more consideration is paid to what produces them than to the seed from which they are derived, and therefore no one can ever doubt that if I should sow your wheat on my own ground, the crop and whatever may be collected from the harvest will belong to me. Again, a possessor in good faith has the same right to harvest the crop which is granted to the actual owner of the land. Besides, since crops of every kind, no matter by whom they have been sowed, belong to the usufructuary, much more does this apply to bona fide possessors who have a still better right to the crops, since they do not belong to the usufructuary until they have been gathered by him, but they belong to the bona fide possessor, without reference to how they may have been separated from the soil; just as in the case of a party who holds land on the condition of paying a tax, the crops become his as soon as they are separated from the soil. 2A bona fide purchaser sowed land of which he was in possession, and, before he harvested the crop, ascertained that the land belonged to someone else. The question arises, will he be entitled to the crop after it is harvested? I answered that a bona fide purchaser should be understood to have a right to harvest the crop, provided the land has not been evicted, for whatever a slave belonging to another, and whom I purchased in good faith, acquires for me by means of my property or by his own labor, is mine, so long as he is not evicted.
26 Idem libro sexto ex Minicio. Venationem fructus fundi negavit esse, nisi fructus fundi ex venatione constet.
26 The Same, On Minicius, Book VI. Julianus denies that game constitutes the profit of land, unless the profit of the land consists of game.
27 Africanus libro octavo quaestionum. Cum patri familias mora facta sit, iam in herede eius non quaeritur mora: nam tunc heredi proximo hereditario iure ea competet ideoque ad ceteros quoque deinceps transmittitur.
27 Africanus, Questions, Book VIII. Where a debtor is in default to the head of a household, no inquiry is made as to whether he is in default to his heir; because the right passes to the next heir by inheritance, and is therefore also transmitted to all others in succession.
28 Gaius libro secundo rerum cottidianarum. In pecudum fructu etiam fetus est sicut lac et pilus et lana: itaque agni et haedi et vituli statim pleno iure sunt bonae fidei possessoris et fructuarii. 1Partus vero ancillae in fructu non est itaque ad dominum proprietatis pertinet: absurdum enim videbatur hominem in fructu esse, cum omnes fructus rerum natura hominum gratia comparaverit.
28 Gaius, Daily Occurrences, Book II. The yield of flocks, such as milk, hair, and wool, is also considered profit. Therefore lambs, kids, and calves, at birth, immediately become the absolute property of a bona fide possessor, or an usufructuary. 1The offspring of a female slave is not, however, considered to be profit, and therefore belongs to the owner of the property. For it would seem absurd for a man to be classed under the term “profit,” when Nature has prepared the fruits of everything for the benefit of the human race.
29 Marcianus libro quarto decimo institutionum. Placuit, sive supra statutum modum quis usuras stipulatus fuerit sive usurarum usuras, quod illicite adiectum est pro non adiecto haberi et licitas peti posse.
29 Marcianus, Institutes, Book XIV. It is settled that where anyone has stipulated for interest above the legal rate, or for compound interest, what is unlawfully added is not held to be added at all, and legal interest can be collected.
30 Paulus libro singulari regularum. Etiam ex nudo pacto debentur civitatibus usurae creditarum ab eis pecuniarum.
30 Paulus, Rules. The interest on money lent by municipalities will be due to them, even under a contract without consideration.
31 Ulpianus libro primo responsorum. Quod in stipulatione sic adiectum est: ‘et usuras, si quae competierint’, nullius esse momenti, si modus certus non adiciatur.
31 Ulpianus, Opinions, Book I. Where the following has been added to a stipulation, “and interest, if any is due,” it will be void if the rate of interest is not mentioned.
32 Marcianus libro quarto regularum. Mora fieri intellegitur non ex re, sed ex persona, id est, si interpellatus oportuno loco non solverit: quod apud iudicem examinabitur: nam, ut et Pomponius libro duodecimo epistularum scripsit, difficilis est huius rei definitio. divus quoque Pius Tullio Balbo rescripsit, an mora facta intellegatur, neque constitutione ulla neque iuris auctorum quaestione decidi posse, cum sit magis facti quam iuris. 1Et non sufficit ad probationem morae, si servo debitoris absentis denuntiatum est a creditore procuratoreve eius, cum etiam si ipsi, inquit, domino denuntiatum est, ceterum postea cum is sui potestatem faceret, omissa esset repetendi debiti instantia, non protinus per debitorem mora facta intellegitur. 2In bonae fidei contractibus ex mora usurae debentur. 3Quid ergo: si et filius familias et pater ex persona eius teneatur (sive iussu eius contractum est sive in rem versum est patris vel in peculium), cuius persona circa moram spectabitur? et si quidem pater dumtaxat convenietur, ex mora sua non tenetur: in filium tamen dabitur actio in hoc, ut quod minus a patre actor consecutus est, filius praestet: quod si filius moram fecerit, tunc actor vel cum ipso in solidum vel cum patre dumtaxat de peculio habebit. 4Sed si duo rei promittendi sint, alterius mora alteri non nocet. 5Item si fideiussor solus moram fecerit, non tenetur, sicuti si Stichum promissum occiderit: sed utilis actio in hunc dabitur.
32 Marcianus, Rules, Book IV. Default is understood to apply, not to the property, but to the person; that is to say, where the party, after having been notified at the proper place, does not make payment; and this should be investigated by the court, for, as Pomponius says in the Twelfth Book of Epistles, the definition of this term is difficult. The Divine Pius stated in a Rescript addressed to Tullius Balbus, that the meaning of the word “default” cannot be determined by reference to any Constitution, nor by inquiry of legal authorities, since it is rather a question of fact than of law. 1Proof of default is not sufficient where notice is served upon a slave of the absent debtor by the creditor, or the agent of the latter; since it is held that the master himself must be notified. But, if subsequently, when the creditor has the power to do so, he should neglect to prosecute the action instituted for the recovery of the debt, the debtor will not be understood to be in default from that time forward. 2In bona fide contracts, interest becomes due through default. 3But what if a son under paternal control and his father, to whom the liability of the former has passed, owe a debt which has been contracted by order of the father; or if the money has been expended for his benefit; or if it has become a part of the peculium of the son; which one of the parties must be considered to be in default? If only the father is sued on account of being in default, he cannot be held liable; still, an action will be granted against the son for the benefit of the creditor, to compel him to pay what the creditor has failed to collect from the father. Where, however, the son is in default, the creditor then can sue him for the entire sum, or he can sue his father only for the amount of the peculium. 4But where two debtors have bound themselves jointly, the default of one does not prejudice the rights of the other. 5Moreover, if a surety alone is in default, he will not be liable; just as if he had killed his slave Stichus, whom he had promised to deliver, but a prætorian action will be granted against him.
33 Ulpianus libro singulari de officio curatoris rei publicae. Si bene collocatae sunt pecuniae publicae, in sortem inquietari debitores non debent et maxime, si parient usuras: si non parient, prospicere rei publicae securitati debet praeses provinciae, dummodo non acerbum se exactorem nec contumeliosum praebeat, sed moderatum et cum efficacia benignum et cum instantia humanum: nam inter insolentiam incuriosam et diligentiam non ambitiosam multum interest. 1Praeterea prospicere debet, ne pecuniae publicae credantur sive pignoribus idoneis vel hypothecis.
33 Ulpianus, On the Duties of the Curator of the Government. Where the money of the Government has been well placed, the debtor should not be uneasy on account of the principal, and especially is this the case where the money bears interest; or if it does not do so, the Governor of the province should provide for the security of the Government, only he must not show himself to be a harsh and insulting collector, but he must act with moderation, and be kind and efficient, and humane and firm; for there is a great deal of difference between disdainful insolence and diligence which is not prompted by ambition. 1Again, he should take care that the public money is not lent without good pledges or security.
34 Ulpianus libro quinto decimo ad edictum. Usurae vicem fructuum optinent et merito non debent a fructibus separari: et ita in legatis et fideicommissis et in tutelae actione et in ceteris iudiciis bonae fidei servatur. hoc idem igitur in ceteris obventionibus dicemus.
34 The Same, On the Edict, Book XV. Interest takes the place of produce, and therefore should not be separated from it; hence in legacies and trusts, in actions on guardianship, and in all other bona fide actions, this rule is observed. Wherefore we say that the same principle applies to all other accessions.
35 Paulus libro quinquagensimo septimo ad edictum. Lite contestata usurae currunt.
35 Paulus, On the Edict, Book LVII. Interest runs after issue has been joined in a case.
36 Ulpianus libro sexagesimo primo ad edictum. Praediorum urbanorum pensiones pro fructibus accipiuntur.
36 Ulpianus, On the Edict, Book LXI. The rents of urban estates are considered to be profits.
37 Idem libro decimo ad edictum. Et in contraria negotiorum gestorum actione usurae veniunt, si mutuatus sum pecuniam, ut creditorem tuum absolvam, quia aut in possessionem mittendus erat bonorum tuorum aut pignora venditurus. quid si domi habens propter eandem causam solvi? puto verum, si liberavi ex magno incommodo, debere dici usuras venire, eas autem, quae in regione frequentantur, ut est in bonae fidei iudiciis constitutum: sed si mutuatus dedi, hae venient usurae quas ipse pendo, utique si plus tibi praestarim commodi, quam usurae istae colligunt.
37 The Same, On the Edict, Book X. Interest is included in the counter-action based on the ground of voluntary agency, where I borrow money in order to pay your creditor, because he was either to be placed in possession of your property, or about to sell your pledges. But what if, having the money at home, I paid the debt for one of the above-mentioned reasons? I think that it is true that interest should be paid where I have freed you from such a great inconvenience, but only such as is customary in that part of the country should be considered due; that is, such as has been established in the case of bona fide actions. But if I should pay money after borrowing it, the interest which I myself have paid can be collected; provided that, by doing so, I have been of greater benefit to you than the value of this interest.
38 Paulus libro sexto ad Plautium. Videamus generali, quando in actione quae est in personam etiam fructus veniant. 1Et quidem si fundus ob rem datus sit, veluti dotis causa, et renuntiata adfinitas, fructus quoque restituendi sunt, utique hi qui percepti sunt eo tempore quo sperabatur adfinitas, sed et posteriores, si in re mora fuit, ut ab illo, qui reddere debeat, omnimodo restituendi sunt. sed et si per mulierem stetit, quo minus nuptiae contrahantur, magis est, ut debeat fructus recipere: ratio autem haec est, quod, si sponsus non conveniebatur restituere fructus, licuerat ei neglegere fundum. 2Item si indebitum fundum solvi et repeto, fructus quoque repetere debeo. 3Idemque est, si mortis causa fundus sit donatus et revaluerit qui donavit atque ita condictio nascatur. 4In Fabiana quoque actione et Pauliana, per quam quae in fraudem creditorum alienata sunt revocantur, fructus quoque restituuntur: nam praetor id agit, ut perinde sint omnia, atque si nihil alienatum esset: quod non est iniquum (nam et verbum ‘restituas’, quod in hac re praetor dixit, plenam habet significationem), ut fructus quoque restituantur. 5Et ideo cum restitui praetor vult, veluti in interdicto unde vi, etiam fructus sunt restituendi. 6Item si vi metusve causa rem tradam, non aliter mihi restituisse videtur, quam si fructus mihi restituat: nec mora mea mihi aliquid aufert. 7Si actionem habeam ad id consequendum quod meum non fuit, veluti ex stipulatu, fructus non consequar, etiamsi mora facta sit: quod si acceptum est iudicium, tunc Sabinus et Cassius ex aequitate fructus quoque post acceptum iudicium praestandos putant, ut causa restituatur, quod puto recte dici. 8Ex causa etiam emptionis fructus restituendi sunt. 9Sed in societatibus fructus communicandi sunt. 10Si possessionem naturalem revocem, proprietas mea manet, videamus de fructibus. et quidem in deposito et commodato fructus quoque praestandi sunt, sicut diximus. 11In interdicto quoque quod vi aut clam magis est, ut omnis causa et fructus restituantur. 12Ante matrimonium quoque fructus percepti dotis fiunt et cum ea restituuntur. 13Eadem ratio est in fructibus praediorum urbanorum. 14Item si dividere fundum tecum velim, tu nolis et colam, an fructus dividi debeant post deductionem impensarum? et puto dividendos. 15In ceteris quoque bonae fidei iudiciis fructus omnimodo praestantur. 16Si dos praelegata fuerit, ante nuptias percepti fructus in causa legati veniunt.
38 Paulus, On Plautius, Book VI. Let us consider, in a general way, where the produce of property is included in a personal action. 1And, in fact, where a tract of land is transferred for some consideration or other, as, for instance, by way of dowry, or that a marriage may be renounced, the crops should also be given up, that is to say those which have been gathered during the time that the marriage contract lasted; but, so far as those which have been gathered afterwards are concerned, if there was any default with reference to the property on the part of him whose duty it was to surrender it, they should by all means be included. Even if it was the woman’s fault that the marriage was not solemnized, the better opinion is that the crops should be given up. The reason for this is that if the woman’s betrothed was not compelled to surrender the crops, he would have been able to neglect the land. 2Moreover, if I have paid money which was not due for land, and I bring suit to recover it, I ought also to recover the crops. 3The same rule applies where land is given mortis causa, and the party who gave it regains his health, and therefore a right to a personal action for its recovery arises. 4In both the Fabian and Paulian Actions, by means of which property which has been disposed of for the purpose of defrauding creditors, is recovered, the produce of said property must also be returned; for the Prætor uses his authority to place everything in the same condition as if nothing had been alienated; and this is not unjust, for the words, “you shall return,” which the Prætor makes use of in this matter, have a broad signification, so that the produce of the property must also be surrendered. 5And, therefore, when the Prætor agrees to the restitution, the produce must also be given up; as in proceedings under the interdict based upon the commission of violence. 6Moreover, if, induced by force or fear, I give up property, it is not held to be restored to me unless the produce of the same is also restored; nor can my default deprive me of any of my rights. 7If I am entitled to an action to recover something which is not mine, as, for example, on a stipulation; I cannot recover the produce, even if the other party is in default. But if issue has been joined, then Sabinus and Cassius hold that, according to the principles of equity, any profits which may have afterwards accrued must be delivered up, in order that the case may be placed in its original condition. I think that this opinion is very correctly stated. 8The profits of property must also be restored in the case of a purchaser. 9In a partnership, however, the profits must be divided among the partners. 10Where I revoke the natural possession of property it remains mine; but let us see whether this applies to the profits. And, in fact, in cases of deposit and loan for use, the profits must be given up, as we have already stated. 11Again, in proceedings under an interdict based on force and clandestine action, the better opinion is that all accessions and profits should be returned. 12Crops gathered from land before marriage become part of the dowry, and should be returned along with it. 13The same principle applies to the profit of urban estates. 14Moreover, if I wish to divide a tract of land with you and you refuse, and I cultivate the land, should the crops from it be divided after the expenses have been deducted? I think that they should be divided. 15The profits should always be delivered in other bona fide actions. 16Where a dowry is left by a husband to his wife, the profits of the same obtained before marriage are included in the legacy.
39 Modestinus libro nono differentiarum. Equis per fideicommissum legatis post moram heredis fetus quoque debentur. equitio autem legato etiamsi mora non intercedat, incremento gregis fetus accedunt.
39 Modestinus, Differences, Book IX. Where mares have been left in trust, their foals are also due after the heir is in default. Where a number of horses have been left, even though there be no default, their offspring belongs to the increase of the drove.
40 Idem libro quarto regularum. In eum diem, quo creditor pignora distraxit, recte usurae fiet reputatio.
40 The Same, Rules, Book IV. The calculation of interest is legally made up to the day when the creditor sells his pledges.
41 Idem libro tertio responsorum. Tutor condemnatus per appellationem traxerat exsecutionem sententiae. Herennius Modestinus respondit eum qui de appellatione cognovit potuisse, si frustratoriam morandi causa appellationem interpositam animadverteret, etiam de usuris medii temporis eum condemnare. 1Lucius Titius cum centum et usuras aliquanti temporis deberet, minorem pecuniam quam debebat obsignavit: quaero, an Titius pecuniae quam obsignavit usuras praestare non debeat. Modestinus respondit, si non hac lege mutua pecunia data est, uti liceret et particulatim quod acceptum est exsolvere, non retardari totius debiti usurarum praestationem, si, cum creditor paratus esset totum suscipere, debitor, qui in exsolutione totius cessabat, solam partem deposuit. 2Ab Aulo Agerio Gaius Seius mutuam quandam quantitatem accepit hoc chirographo: ‘ille scripsi me accepisse et accepi ab illo mutuos et numeratos decem, quos ei reddam kalendis illis proximis cum suis usuris placitis inter nos’: quaero, an ex eo instrumento usurae peti possint et quae. Modestinus respondit, si non appareat de quibus usuris conventio facta sit, peti eas non posse.
41 The Same, Opinions, Book III. Judgment having been rendered against a guardian, he delayed the execution of the judgment by taking an appeal. Herennius Modestinus gave it as his opinion that the judge who had jurisdiction of the appeal could also hold him responsible for interest during the intermediate time, if he ascertained that the appeal was fraudulently interposed for the purpose of delay. 1Lucius Titius, who owed the sum of a hundred aurei and interest on the same for a certain time, tendered and sealed up a smaller sum than he owed. I ask whether Titius did not owe interest on the money which he sealed up. Modestinus answered that if it was not agreed at the time of the loan that the debtor should be permitted to pay what he had borrowed by instalments, the payment of interest for the entire debt would not be affected; if, when the creditor was ready to receive the whole amount, the debtor who failed to make the payment of the entire sum only deposited a part of it. 2Gaius Seius borrowed a certain sum of money from Aulus Agerius on the following note: “The undersigned says that I have received, and I acknowledge having received from him, borrowed money to the amount of ten aurei, which I promise to pay to him on the Kalends of next July, together with the interest on the same that is agreed upon between us.” I ask whether interest can be collected on this instrument, and if so, how much. Modestinus answered that if it does not appear how much interest was agreed upon, it cannot be collected.
42 Idem libro undecimo responsorum. Herennius Modestinus respondit fructus, qui post adquisitum ex causa fideicommissi dominium ex terra percipiuntur, ad fideicommissarium pertinere, licet maior pars anni ante diem fideicommissi cedentem praeterisse dicatur.
42 The Same, Opinions, Book XI. Herennius Modestinus gave it as his opinion that crops taken from land after the ownership of the same had been acquired by means of a trust, belonging to the beneficiary; even though the greater part of the year had elapsed before the trust became operative.
43 Idem libro octavo decimo responsorum. Herennius Modestinus respondit eius temporis quod cessit, postquam fiscus debitum percepit, eum, qui mandatis a fisco actionibus experitur, usuras quae in stipulatum deductae non sunt petere non posse.
43 The Same, Opinions, Book XVIII. Herennius Modestinus held that a party who institutes proceedings in behalf of the Treasury can collect interest which was not included in the stipulation, after he has collected what is due to the Treasury for the time during which the debtor was in default.
44 Idem libro decimo pandectarum. Poenam pro usuris stipulari nemo supra modum usurarum licitum potest.
44 The Same, Pandects, Book X. No one can stipulate for a penalty instead of interest above the lawful rate.
45 Pomponius libro vicesimo secundo ad Quintum Mucium. Fructus percipiendo uxor vel vir ex re donata suos facit, illos tamen, quos suis operis adquisierit, veluti serendo: nam si pomum decerpserit vel ex silva caedit, non fit eius, sicuti nec cuiuslibet bonae fidei possessoris, quia non ex facto eius is fructus nascitur.
45 Pomponius, On Quintus Mucius, Book XXII. A wife, or a husband, acquires the right to the produce of property which has been given by one to the other, that is to say, what either has been acquired by his or her labor, for example, by sowing; but if an apple should be plucked, or a tree cut down, it does not become the property of the party responsible for the act, just as it would not belong to any bona fide possessor, because the produce is not derived from his or her personal exertion.
46 Ulpianus libro sexagesimo secundo ad edictum. Quod in fructus redigendos impensum est, non ambigitur ipsos fructus deminuere debere.
46 Ulpianus, On the Edict, Book LXII. There is no doubt that whatever has been expended in gathering the crops should be deducted from the crops themselves.
47 Scaevola libro nono digestorum. Respondit paratum iudicium accipere, si ab adversario cessatum est, moram facere non videri.
47 Scævola, Digest, Book IX. It is held that where a party is ready to join issue in a case, and his adversary fails to file his complaint, he will not be held to be in default.
48 Idem libro vicesimo secundo digestorum. Maritus uxori suae usum fructum tertiae partis et, cum liberos habuisset, proprietatem legavit: eam uxorem heredes falsi testamenti et aliorum criminum accusaverunt, qua re impedita est legatorum petitio: interea et filius ei mulieri natus est eoque condicio legati exstitit. quaesitum est, cum testamentum falsum non esse apparuerit, an fructus etiam mulieri praestari debeant. respondit praestandos.
48 The Same, Digest, Book XXII. A husband bequeathed to his wife the usufruct of the third part of his property, and the ownership of the said third part if she should have children. The heirs accused the wife of forging the will and of other crimes, by which they were prevented from claiming the legacies. In the meantime, a son was born to the woman, and the condition of the legacy was thereby fulfilled. The question arose, if it was established that the will was not forged, should the crops be delivered to the owner? The answer was that they should be.
49 Iavolenus libro tertio ex posterioribus Labeonis. Fructus rei est vel pignori dare licere.
49 Javolenus, On the Last Works of Labeo, Book II. The power of giving property in pledge is a product of the same.