De statuliberis
(Concerning Slaves Who are to be Free Under a Certain Condition.)
1 Paulus libro quinto ad Sabinum. Statuliber est, qui statutam et destinatam in tempus vel condicionem libertatem habet. 1Fiunt autem statuliberi vel condicione expressa vel vi ipsa. condicione expressa quid est, manifestum est. vi ipsa, cum creditoris fraudandi causa manumittuntur: nam dum incertum est, an creditor iure suo utatur, interim statuliberi sunt, quoniam fraus cum effectu in lege Aelia Sentia accipitur.
1 Paulus, On Sabinus, Book V. A slave who is to be conditionally free is one who will be entitled to his freedom at the expiration of a prescribed time, or upon the fulfillment of a certain condition. 1Slaves become free either under an express condition, or by the operation of the,law itself. It is clear in what way this takes place under an express condition. They are manumitted by operation of law where they are liberated for the purpose of defrauding creditors. For as long as it is uncertain whether a creditor will avail himself of his rights, the slaves are conditionally free, because, by the Lex Ælia Sentia, the commission of a fraud under such circumstances must take effect.
2 Ulpianus libro quarto ad Sabinum. Qui statuliberi causam adprehendit, in ea condicione est, ut, sive tradatur, salva spe libertatis alienetur, sive usucapiatur, cum sua causa usucapiatur, sive manumittatur, non perdat spem orcini liberti. sed statuliberi causam non prius servus nanciscitur nisi adita vel ab uno ex institutis hereditate: ceterum ante aditionem sive tradetur sive usucapietur sive manumittetur, spes statutae libertatis intercidit. 1Sed si impuberis tabulis libertas servo sit adscripta, an vivo pupillo, post aditionem videlicet hereditatis patris, statuliber sit? Cassius negat: Iulianus contra existimat, quae sententia verior habetur. 2Plus scripsit Iulianus et si legatus sit servus ab herede patris, liber esse iussus in pupillaribus tabulis, praevalere libertatis dationem. 3Si primis tabulis sub condicione servus cum libertate ex parte dimidia heres sit institutus, an statuliberi causam optineat, ut adeunte coherede cum sua causa usucapiatur? cum a semetipso acceperit libertatem, non potest statuliberi causam optinere. plane si condicio hereditatis deficiat, quo casu secundum Iulianum vel libertatem apiscitur, dicendum est statuliberi causam optinere, eo quod non a semetipso, sed a coherede accepisse libertatem creditur. 4Quocumque gradu pupillo servus cum libertate substitutus sit, necessarii causam optinet: quae sententia utilitatis causa recepta est et a nobis probatur. Celsus quoque putat libro quinto decimo cum libertate substitutum statuliberi causam optinere.
2 Ulpianus, On Sabinus, Book IV. We understand the position of the slave who is to be free under a condition to be such that, whether he is delivered after having been sold, while still retaining the hope of his freedom, or whether he has been acquired for his own benefit by usucaption, or whether when he is manumitted, he does not abandon the expectation of becoming the freedman of the deceased. The slave is not placed in such a position unless the estate has been entered upon by one of the heirs. But if he should be alienated, or acquired by usucaption, or manumitted before the estate is entered upon, his hope of the freedom bequeathed to him will be lost. 1Where, however, freedom has been left to a slave under a pupillary substitution, will he become conditionally free during the lifetime of the minor, after the estate of his father has been accepted? Cassius denies that he will; but Julianus holds the opposite opinion, which is considered the more correct one. 2Julianus further says that if a slave is bequeathed to the heir of the father, and, in the pupillary substitution he is ordered to be free, the grant of freedom will take precedence. 3If a slave is appointed heir to half of the estate, with the grant of his freedom conditionally, by the first will, will he occupy the position of a slave, who is to be conditionally free, so that, if his co-heir enters upon the estate, he cannot under the circumstances be acquired by usucaption? He cannot occupy the position of a slave to be conditionally free, as he received freedom from himself. It is clear that it must be held that he will occupy the position of a slave to be conditionally free, if the condition under which he was appointed heir should not be complied with; in which case, according to Julianus, he will obtain his liberty because he is not held to have obtained it from himself but from his co-heir. 4In whatever degree a slave may have been substituted for a minor, with the bequest of his freedom, he occupies the position of a necessary heir. This opinion has been adopted on account of its convenience, and we approve it. Celsus, also, in the Fifteenth Book, thinks that a slave who is substituted with a bequest of his freedom occupies the position of one who is to be conditionally free.
3 Idem libro vicensimo septimo ad Sabinum. Statuliberos condicioni parere oportet, si nemo eos impediat et sit condicio possibilis. 1Sed si in heredis persona iussus sit parere condicioni, quid dici debeat? si quidem paruit condicioni, statim liber est etiam invito herede. quod si non patitur heres pareri (puta offert decem, quae dare iussus erat), procul dubio liber est, quia per heredem stare videtur, quo minus condicionem impleat. et parvi refert, de peculio ei offerat an ab alio accepta: receptum est enim, ut servus peculiares quoque nummos dando perveniat ad libertatem, sive ipsi heredi sive alii dare iussus est. 2Inde quaeritur, si forte debeatur pecunia huic servo vel ab herede, quod in domini rationem plus erogaverat, vel ab extraneo, nec velit heres debitorem convenire vel statulibero solvere pecuniam: an debeat ad libertatem pervenire, quasi moram per heredem patiatur. et aut legatum huic statulibero fuit peculium aut non: si legatum peculium fuit, Servius scribit moram eum libertatis passum ob hoc ipsum, quod ei aliquid ex ratione dominica deberetur nec ei ab herede praestaretur: quam sententiam et Labeo probat. idem Servius probat et si in eo moram faciat heres, quod nolit exigere a debitoribus: nam perventurum ad libertatem ait. mihi quoque videtur verum quod Servius ait. cum igitur veram putemus sententiam servi, videamus, an et si non fuerit praelegatum peculium servo, idem debeat dici: constat enim statuliberum de peculio posse dare vel ipsi heredi iussum vel alii: et si eum dare impediat, perveniet statuliber ad libertatem. denique etiam remedii loco hoc monstratur domino statuliberi, ut eum extraneo iussum dare prohibeat, ne et nummos perdat cum statulibero. proinde defendi potest et si non vult exigere vel ipse solvere, ut hic habeat, unde condicioni pareat, libertatem competere: et ita Cassius quoque scribit. 3Non solum autem si dare iussum dare prohibeat, statuliber ad libertatem pervenit, verum etiam si ascendere Capitolium iussum ascendere vetet, item si Capuae dare iussum Capuam ire prohibeat: nam qui prohibet servum proficisci, intellegendus est impedire magis velle libertatem quam operis servi uti. 4Sed et si iussum coheredi dare non patiatur unus ex heredibus dare, aeque liber erit: sed is, cui iussus erat dare et liber esse, familiae erciscundae iudicio ab eo qui impedit consequetur, quod sua intererat prohibitum statuliberum non esse. 5Si decem iussus dare et liber esse quinque det, non pervenit ad libertatem, nisi totum det: interim igitur vindicare quinque nummos dominus eorum potest. sed si residuum fuerit solutum, tunc etiam id alienatum, cuius ante dominium non erat translatum. ita pendebit praecedentis summae alienatio, sic tamen, ut non retro nummi fiant accipientis, sed tunc, cum residua summa fuerit exsoluta. 6Si plus quam iussus erat dederit statuliber, puta decem iussus dare viginti dedit, sive numeravit sive in sacculo dedit, pervenit ad libertatem et superfluum potest repetere. 7Si quis servum iussum decem dare et liberum esse vendiderit sine peculio, utrum statim liber sit (quasi prohibitus videatur de peculio dare hoc ipso, quod sine peculio distractus est) an vero cum fuerit prohibitus peculium tangere? et puto tunc demum liberum fore, cum volens dare prohibeatur, non statim ubi veniit. 8Si quis servum iussum decem dare et liberum esse operari prohibeat, vel si, quod ex operis suis meret, abstulerit ei heres, vel si, quod ex mercedibus suis coegit, heredi dederit, an ad libertatem perveniat? et puto, si quidem ex operis dederit vel undecumque dederit, ad libertatem perventurum: quod si prohibeatur operari, non fore liberum, quia operari domino debet. plane si ei ablata fuerit pecunia ex operis collecta, liberum fore arbitror, quia de peculio dare prohibetur. sane si testator vel ex operis ut det iussit, prohibitum operari ad libertatem perventurum non dubito. 9Sed et si argento subtracto vel rebus aliis distractis nummos corrasos dederit, perveniet ad libertatem, quamvis, si nummos subtractos dedisset, ad libertatem non perveniret: nec enim videtur dedisse, sed magis reddidisse. sed nec si aliis subripuerit nummos et heredi dederit, ad libertatem perveniet, quia avelli nummi ei qui accepit possunt. plane si sic consumpti fuerint, ut nullo casu avelli possint, conpetet libertas. 10Non solum autem si heres moram facit libertati, sed et si tutor vel curator vel procurator vel alius quivis, in cuius persona condicioni parendum est, libertatem competere dicemus. et sane hoc iure utimur in statulibero, ut sufficiat per eum non stare, quo minus condicioni pareat. 11Si quis heredi in diebus triginta proximis mortis testatoris dare iussus fuerit, deinde heres tardius adierit, Trebatius et Labeo, si sine dolo malo tardius adierit, dantem eum intra dies triginta aditae hereditatis ad libertatem pervenire: quae sententia vera est. sed quid si data opera traxit? an ob id statim, ut adita est hereditas, ad libertatem perveniat? quid enim si tunc habuit, post aditam habere desiit? sed et hic expleta videtur condicio, quoniam per eum non steterit, quo minus impleatur. 12Si quis sic acceperit libertatem ‘cum decem dare poterit, liber esto’, Trebatius ait, licet habuerit decem vel idoneus fuerit ad adquirendum et conservandum peculium, tamen non alias ad libertatem perventurum, nisi dederit aut per eum non steterit, quo minus det: quae sententia vera est. 13Stichus annua bima trima die denos aureos heredi si dederit, liber esse iussus est. si prima pensione stetit per heredem, quo minus acciperet decem, exspectandam esse trimam pensionem placet, quia et tempus adiectum est et adhuc supersunt duae pensiones. sed si eadem decem sola habeat, quae optulit ad primam pensionem, an etiam ad sequentem quoque prosit, si offerat? et an et ad tertiam, si sequens pensio non sit accepta? et puto sufficere haec eadem et paenitentiae heredi locum non esse: quod et Pomponius probat. 14Quid si servus, qui annua bima trima die iussus est dena dare, tota simul offerat heredi non exspectata die? vel decem primo anno datis secundo anno viginti optulit? benignius est eum in libertatem pervenire, cum utriusque providentia infertur et servi, quatenus maturius in libertatem perveniat, et heredis, quatenus dilatione interempta ilico accipiat, quod post tempus consequi poterat. 15Si ita sit libertas servo data, si quinquennio heredi servierit, deinde eum heres manumiserit, statim liber fit, quasi per eum sit effectum, quo minus ei serviat: quamvis si non pateretur eum sibi servire, non statim perveniret, quam si quinquennium praeterisset. ratio huius res evidens est: manumissus enim amplius servire non potest: at is quem quis non patitur sibi servire, postea pati potest intra quinquennii tempus. atquin iam quinquennio ei servire non potest: sed vel minus potest. 16Item Iulianus libro sexto decimo digestorum scripsit, si Arethusae libertas ita sit data, si tres servos pepererit, et per heredem steterit, quo minus pepererit (puta quod ei medicamentum dedisset, ne conciperet), statim liberam futuram esse: quid enim exspectamus? idemque et si egisset heres, ut abortum faceret, quia et uno utero potuit tres edere. 17Item si heredi servire iussum statuliberum heres vendidit et tradidit, credo statim ad libertatem pervenire.
3 The Same, On Sabinus, Book XXVII. Slaves of this description must comply with the condition prescribed, if no one prevents them from doing so, and the condition is possible. 1Where, however, the slave is ordered to comply with the condition with respect to the heir, what must be said?” If he complies with it he will immediately become free, although the heir may not consent. If the heir prevents him from complying with the condition, as, for instance, where he refuses ten aurei which the slave was ordered to pay him, there is no doubt that the slave will be free, because it is the fault of the heir that the condition was not fulfilled. And it makes little difference whether he tenders the amount out of his peculium, or whether he has obtained it from some other source, for it is established that a slave who pays money out of his peculium will be entitled to his freedom, whether he is ordered to pay it to the heir or to anyone else. 2Hence, the question arises, if a sum of money should be due to the said slave, either from the heir, because the slave had advanced it in transacting the business of his master, or from a stranger, and the heir does not wish to sue the debtor, or to pay the money to the slave, will the latter be entitled to his freedom on account of the delay he suffers through the fault of the heir? Either the peculium was bequeathed to the slave, or it was not; if it was bequeathed to him, Servius says that it is the heir who is responsible for the delay of the slave obtaining his freedom, because something is due to him from the estate of his master which is not paid by the heir. Labeo adopts this opinion. Servius also approves it, and says that if the heir causes delay for the reason that he is unwilling to collect money from the debtors of the slave, the latter will be entitled to his freedom. The opinion of Servius seems to me to be correct. Hence, as we think this opinion to be true, let us see whether the same rule should not apply, even where the peculium was not bequeathed as a preferred legacy to the slave. For it is settled that a slave, in order to be conditionally free, can make a payment out of his peculium whether he is ordered to do so to the heir, to himself, or to someone else; and if the heir should prevent him from doing so, the slave will be entitled to his freedom. Finally, this is given to the master of the slave as a remedy, that is, he is forbidden to pay to a stranger what he was ordered to pay, lest he may run the risk of losing both the money and the slave; hence it can be maintained that, if the heir does not wish to collect the claim from the debtors of the slave, or to pay him himself, so that he may have the means with which to comply with the condition, the slave will be entitled to his freedom. Cassius also adopted this opinion. 3Again, the slave will not only obtain his freedom when he is prevented from paying what he was ordered by the testator to pay, but also if he is forbidden to ascend to the Capitol, or if he is prevented from going to Capua; for anyone who hinders a slave from taking a journey is understood rather to desire that he shall lose his freedom than to wish to avail himself of his services. 4Where the slave is ordered to pay a co-heir, and another of the heirs prevents him from doing so, he will also become free; but he to whom he was ordered to make payment and become free will be entitled to an action in partition against the one who prevented him, in order to obtain the amount of his interest in not having the slave prevented from paying him. 5If a slave who is ordered to pay ten sesterces and become free pays five, he will not be entitled to his freedom unless he pays the entire sum. Therefore, in the meantime, the owner of the five sesterces can claim them, but if the balance should be paid, then the first five, the ownership of which had not previously passed to him to whom they were given will be acquired by him; hence, the transfer of the first sum paid will remain in suspense, so that the sesterces will not, by retroactive effect, become the property of him who received them, but only where the remainder of the amount has been paid. 6If the slave should pay more than he had been ordered to do (for instance, if he had been ordered to pay ten sesterces, and he pays twenty), whether he counted the coins, or gave them in a bag, he will obtain his freedom, and can recover the surplus. 7If anyone should sell, without his peculium, a slave who had been ordered to pay ten sesterces and become free, will the slave immediately obtain his liberty, because he has been prevented from making payment out of his peculium, for the reason that he was sold without it, or will he become free from the time that he was forbidden to touch his peculium? I think that he will only become free from the time when he wished to make payment, and was prevented from doing so, and not from the very day when he was sold. 8Where anyone prevents a slave, who was ordered to pay ten aurei and become free from working, or where the heir deprives him of what he has earned by his labor, or if he should give the heir whatever he has obtained in this way, will he be entitled to his freedom? I think that if he should pay him what he has earned by his labor, or anything that he has obtained from any source whatsoever, he will be entitled to his freedom. If, however, he was prevented from working, he will not become free, because he is obliged to work for his master. I think that it is clear that he will become free if he should be deprived by his master of money earned by his labor, because he has been deprived of the power to pay it out of his peculium; but if the testator ordered him to pay the said sum of money earned by his labor, and he is prevented from working, I have no doubt that he will be entitled to his freedom. 9If, however, the slave should have abstracted any silver plate, or sold other property and made payment out of the proceeds, he will obtain his freedom, although if he has paid money which he stole he will not do so; for he is not considered to have given the said money but rather to have returned it. But if he stole money belonging to other persons, and paid it to the heir, he will not obtain his freedom, for the reason that the money which was stolen can be recovered from him who received it; still, if it was used in such a way that it can, under no circumstances, be recovered, the slave will be entitled to his freedom. 10Moreover, not only where the heir delays in making a grant of freedom, but where a guardian, curator, agent, or anyone else by whom the condition should be complied with does so, we say that the slave will be entitled to his freedom. And, indeed, this is our practice, in the case of a slave who is to be conditionally free, and it is sufficient that it is not his fault that he does not comply with the condition. 11If anyone should be ordered to pay the heir within thirty days after the death of the testator, and the heir enters upon the estate after that time has elapsed, Trebatius and Labeo say that if he did so without acting fraudulently, the slave will obtain his freedom within thirty days after the acceptance of the estate. This opinion is correct. But what course must be pursued if the heir purposely delayed; will the slave be entitled to his freedom on this account from the time when the estate was entered upon? What if he had the money then, but did not have it after the estate was accepted? In this case, however, the condition is held to have been fulfilled, as the slave was not responsible for it not having been complied with in the first place. 12Where a slave receives his freedom under the following clause, “Let him be free when he can pay him ten aurei,” Trebatius says that, although he may have the ten aurei, or be in a position to obtain and keep his peculium, still he will not be entitled to his freedom unless he pays the money, or is not to blame for failing to pay it. This opinion is correct. 13Stichus was ordered to be free if he paid ten aurei to the heir annually for three years. If the heir was responsible for the nonpayment of the first instalment, it is established that the slave must wait until the date of the third payment, because the time is prescribed, and there are two payments remaining. If, however, the slave has only the ten aurei which he offered when the first payment was due, would it be of any advantage to him if he tendered them at the time of the second payment, or even at the time of the third, provided the second had not been accepted? I think that it would be sufficient for him to do so, and that the heir has no right to change his mind. Pomponius also adopts this opinion. 14What must be done if the slave who was ordered to make the three annual payments should tender the entire amount to the heir without waiting for it to become due? Or if, having paid ten aurei at the end of the first year, he should offer twenty at the end of the second? The more indulgent interpretation is that he will be entitled to his freedom, as benefit will accrue to both parties; for the slave will obtain his freedom sooner, and the heir will receive without delay what he would have obtained after a certain time. 15Where freedom is granted to a slave, if he serves the heir for five years, and the heir should manumit him, he immediately becomes free, as it is the fault of the heir that he did not serve him; although, if the heir did not wish him to do so, he would not become free until after the term of five years had elapsed. The reason for this is evident, as a manumitted slave can no longer remain in servitude. But the master who does not desire the slave to serve him can still permit this to be done within five years. The slave, however, cannot serve him for the entire term of five years but he can do so for a shorter period. 16Julianus, also, in the Sixteenth Book of the Digest, says that if Arethusa was granted her freedom under the condition that she should bring forth three slaves, and the heir was responsible for her not doing so (for instance, because he gave her some drug to prevent her from conceiving), she will immediately become free. For why should we wait? It is just the same as if the heir should cause her to have an abortion, because she could have three children at a birth. 17Likewise, if the heir should sell and deliver a slave who is to be liberated conditionally, and who has been ordered to serve him, I think that the slave will immediately be entitled to his freedom.
4 Paulus libro quinto ad Sabinum. Cum heres rei publicae causa abesset et pecuniam statuliber haberet: vel exspectari eum debere, donec redeat is cui dare debet, vel deponere in aedem pecuniam consignatam oportet, quo subsecuto statim ad libertatem pervenit. 1Non est statuliber, cui libertas in tam longum tempus collata est, ut eo tempore is qui manumissus est vivere non possit: aut si tam difficilem, immo paene inpossibilem condicionem adiecerit, ut aliunde ea libertas optingere non possit, veluti si heredi milies dedisset aut cum moreretur, liberum esse iussisset: sic enim libertas inutiliter datur, et ita Iulianus scribit, quia nec animus dandae libertatis est. 2Servire Titio anno et liber esse iussus Titio mortuo non statim liber fiet, sed cum annus transierit, quod videtur non tantum sub condicione, sed etiam ex tempore data libertas: etenim absurdum est maturius eum liberum fieri, cum condicionem non implet, quam futurus foret, si eam expleret. 3Si duobus decem datis liber esse iussus sit et unus quinque accipere noluerit, melius est dicere posse eum eadem quinque alteri offerentem ad libertatem pervenire. 4‘Stichus si Titio per triennium servierit vel si illi centum operas dederit, liber esto’. constat hoc modo libertatem utiliter dari posse: nam et alienus servus servire nobis potest, sicuti liber, et multo magis operas dare: nisi testator servitutis appellatione dominium magis quam operam intellexit. ideoque si prohibet heres Titio servire, pervenit ad libertatem. 5‘Stichus si heredi meo anno servierit, liber esto’: quaerendum est, annus quomodo accipi debeat, an qui ex continuis diebus trecentis sexaginta quinque constet an [ed. maior quibus libet] <ed. minor quibuslibet>. sed superius magis intellegendum Pomponius scribit. sed et si quibusdam diebus aut valetudo aut alia iusta causa impedimento fuerit, quo minus serviat, et hi anno imputandi sunt: servire enim nobis intelleguntur etiam hi, quos curamus aegros, qui cupientes servire propter adversam valetudinem impediuntur. 6Item si decem heredi dare iussus fuerit, heres etiam per partes accipere favore libertatis cogendus est. 7Ita liber esse iussus ‘si Titius Capitolium ascenderit’: si Titius nolit ascendere, impedietur libertas. idemque iuris est in similibus causis et condicionibus. 8Item Cassius ait ei, qui servire iussus est anno, illud tempus, quo in fuga sit vel in controversia pro libertate, non procedere.
4 Paulus, On Sabinus, Book V. When the heir is absent on business for the state, and the slave has the money ready for payment, he must wait until he to whom he is to pay it returns, or he must deposit it, sealed up, in a temple; and this having been done, he will immediately be entitled to his freedom. 1A slave is not considered to become conditionally free whose liberty is deferred for so long a time that he who is to be manumitted cannot live until it has elapsed; or, if his owner has prescribed such a difficult, or even an impossible, condition that his freedom cannot be acquired by complying with it; as, for instance, if it was that he should pay a thousand times a certain sum to the heir, or if he should order him to be free from the time of his death. A grant of freedom made in this manner is void, as Julianus says, because there is, in fact, no intention of granting the slave his freedom. 2If a slave is ordered to be free on condition of serving Titius for a year, and Titius should die, the slave will not immediately become free, but he will after the expiration of a year, because freedom is considered to have been given him not only under a condition, but also from a certain date. For it would be absurd for him to become free sooner when he did not comply with the condition than he would if he did comply with it. 3Where a slave is ordered to be free on the payment of ten aurei to two persons, and one of them refuses to accept five, it is better to hold that the slave can obtain his freedom by tendering the said five aurei to the other party. 4“Let Stichus be free, if he serves Titius for three years, or renders him services worth a hundred solidi.” It is settled that freedom can be legally granted in this manner; for the slave of another can serve us as a freeman, and can, with greater propriety, render us his services; unless the testator, by the term services, meant ownership, rather than labor. Hence, if the heir prevents the slave from serving Titius, he will be entitled to his freedom. 5“Let Stichus be free if he serves my heir for a year.” The question might arise how ought the word “year” be understood in this case; should it be a term which contains three hundred and sixty-five consecutive days, or merely that many days? Pomponius says that the word should be understood in the former sense. If, however, illness, or some other just cause prevents the slave from serving during certain days, these ought to be included in the year. For those whom we take care of when ill are understood to serve us, if they are willing to do so but are precluded by bad health. 6If a slave is ordered to pay ten aurei to the heir, the latter will, through the indulgence conceded to freedom, be compelled to receive the money in separate payments. 7Where a slave was ordered to be free, “if Titius should ascend to the Capitol,” and Titius refuses to do so, the grant of freedom is annulled. This rule also applies to similar cases under the same conditions. 8Cassius, likewise, says that where a slave is ordered to serve for a year, the time when he was in flight or in litigation will not be included in favor of his freedom.
5 Pomponius libro octavo ad Sabinum. Statuliber rationem reddere iussus reliquum quod apparet solvit, de eo, quod obscurius est, satisdare paratus est. Neratius et Aristo recte putant liberum fore, ne multi ad libertatem pervenire non possint incerta causa rationis et genere negotii huiusmodi. 1Statuliber, qui non rationes reddere, sed pecuniam iussus est dare, numerare debet, non fideiussorem dare.
5 Pomponius, On Sabinus, Book VIII. Where a slave who was to become free conditionally was ordered to render an account, and paid what appeared to be the balance remaining in his hands, and offered to give security with reference to what remained in doubt, Neratius and Aristo very properly hold that he will become free; as otherwise, many slaves might not obtain their liberty because of the uncertainties of accounts and the nature of business of this kind. 1A slave who is to become free conditionally, and is ordered to pay a sum of money but not to render an account, should pay it, and not furnish a surety that he will do so.
6 Ulpianus libro vicensimo septimo ad Sabinum. Si statulibera serva poenae facta sit et post damnationem statutae libertatis condicio exstiterit, quamvis ipsi statuliberae nihil proficiat, partui tamen proficere oportet, ut perinde liber nascatur, atque si mater damnata non esset. 1Quid tamen si qua conceperit in servitute, deinde ab hostibus capta peperit ibi post existentem condicionem, an liberum pariat? et interim quidem quin servus hostium sit, nequaquam dubium est: sed verius est postliminio eum liberum fieri, quia, si mater in civitate esset, liber nasceretur. 2Plane si apud hostes eum concepisset et post existentem condicionem edidisset, benignius dicetur competere ei postliminium et liberum eum esse. 3Statuliber parendo condicioni in persona emptoris pervenit ad libertatem: et sciendum hoc ad statuliberos omnis sexus pertinere. non solum autem si venierit, haec condicio ad eum transit qui emit, verum etiam ad omnes, quicumque quoquo iure dominium in statulibero nacti sunt. sive igitur legatus sit tibi ab herede statuliber sive adiudicatus sive usucaptus a te sive traditus vel aliquo iure tuus factus, sine dubio dicemus parere condicioni in persona tua posse. sed et in herede emptoris idem dicitur. 4Si filius familias heres sit institutus et statuliber filio dare iussus est et liber esse, sive filio sive patri dando pervenit ad libertatem, quia et ad patrem hereditatis emolumentum pervenit. sed et si post mortem filii patri dederit quasi heredis heredi, liber erit: nam et si quis extraneo dare iussus sit et liber esse, deinde hic heredi heres extiterit, non quasi in extranei persona, sed quasi in heredis condicioni parebit. 5Statuliber decem dare iussus et liber esse, si quinque datis distractus sit, residua quinque emptori dabit. 6Si servus tuus statuliberum emerit, tibi datur, quod heredibus dare iussus est. sed et si tuo servo dederit, si modo is eum peculiari nomine emit neque ei tu peculium ademisti, puto liberum fore, scilicet ut eo modo tibi dedisse intellegatur, perinde atque si tua voluntate cuivis alii tuorum servorum dedisset. 7Si quis non dare decem et liber esse, sed rationibus redditis liber esse iussus sit, an ad emptorem haec condicio transeat, videamus. et alias sciendum est eas demum condiciones ad emptorem transire, quae sunt in dando: ceterum hae, quae sunt in faciendo, non transeunt, ut puta si filium eius litteras edocuerit: hae enim personis eorum cohaerent, quibus adscribuntur. rationum autem reddendarum condicio, quod ad reliqua quidem attinet, in danda pecunia consistit, quod autem ad ipsa volumina rationum tradenda percontandasque et examinandas rationes et in dispungendas atque excutiendas, factum habet. num quid ergo reliqua quidem et emptori dando perveniat ad libertatem, cetera in persona heredis consistant? puto igitur et ad emptorem reliquorum solutionem transmitti: sic fiet, ut dividatur condicio: et ita Pomponius libro octavo ex Sabino scripsit.
6 Ulpianus, On Sabinus, Book XXVII. If a female slave who is to become free conditionally is sentenced to servitude as punishment for crime, and after her conviction the condition upon which her freedom is dependent is fulfilled, although it will be of no advantage to her, it will, nevertheless, benefit any child which she may have, for it will be born free, just as if its mother had not been convicted. 1What, however, would be the result if such a female slave should conceive while in servitude, and, having been captured by the enemy, should have a child after the condition upon which her freedom was dependent had been complied with; would her child be free at its birth? There is no doubt whatever that it would, in the meantime, be the slave of the enemy; but it is also true that it would become free by the right of postliminium, because if the mother had been in her own country the child would have been born free. 2It is clear that the more equitable opinion is that, if she should conceive while in the hands of the enemy, and bring forth the child after the condition had been fulfilled, it could profit by the right of postliminium and become free. 3A slave to be free conditionally will obtain his liberty from his purchaser if the condition is complied with. It must be remembered that this rule is applicable to slaves of both sexes. If the condition is fulfilled, it not only binds the person who purchased the slave, but also all those who have obtained ownership of him by any title whatsoever. Therefore, whether the slave has been bequeathed to you by the heir, or awarded to you in court, or acquired by you through usucaption, or transferred to you, or has become your property by any other right, we say that, beyond any doubt, the condition can be complied with so far as you are personally concerned. The same can be said with reference to the heir of the purchaser. 4Where a son under paternal control is appointed an heir, and a slave to be free conditionally is directed to pay to the son a certain sum of money, and be free, he will obtain his freedom by paying the said sum either to the son, or to his father; because the father is entitled to the benefit of the estate. If, however, he should pay the father after the death of the son, he will become free, as having made payment to the heir of the heir. For if a slave is ordered to pay a sum of money to a stranger, and become free, and the latter becomes the heir of the heir, he will comply with the condition not with reference to the stranger, but as it were, with reference to the heir. 5Where a slave is directed to pay ten aurei and become free, and he is sold after having paid five, he must pay the remaining five to the purchaser. 6If your slave should purchase another slave, who is to be free conditionally, he must pay you what he was ordered to pay to the heirs. If, however, he has paid your slave, I think that he will be free, provided your slave bought him with money belonging to his peculium, and you have not deprived him of it; so that, in this way, he will be understood to have paid you, just as if payment had been made to any one of your slaves with your consent. 7When a slave is ordered to be free, not upon the payment of a sum of money but if he renders his accounts, let us see whether this condition will pass to the purchaser. And it must be remembered that usually only those conditions which refer to the payment of money pass to a purchaser, and that such as refer to acts to be performed do not pass to him; for instance, if he gives his son instruction, for these conditions attach to the person of those upon whom they are imposed. The condition of rendering an account, however, which implies the existence of a balance, has reference to the payment of money; but the production of the books containing the amounts, and the calculation and examination of the accounts themselves, as well as their revision and investigation, have reference to acts to be performed. Therefore, can the slave obtain his freedom by paying the balance remaining in his hands to the purchaser, and by complying with the rest of the condition which concerns the heir? I think that the payment of the balance passes to the heir. Hence it happens that the condition may be divided. Pomponius, also, stated this opinion in the Eighth Book on Sabinus.
7 Paulus libro quinto ad Sabinum. Usus fructus alienato condicionem statuliberi secum non trahit.
7 Paulus, On Sabinus, Book V. The alienation of the usufruct does not carry with it the condition upon which the slave is to become free.
8 Pomponius libro octavo ad Sabinum. Ita liber esse iussus ‘si decem dederit, liber esto’ heredi dare debet: nam qui non habet, cui det, heredi dando ad libertatem pervenit. 1Si partes suas quisque heredum diversis ementibus vendiderit, quas portiones heredibus dare statuliber debuit, easdem dabit emptoribus. Labeo autem ait, si nomina dumtaxat heredum in testamento posita sint, viriles partes eis dandas: si vero ita ‘si heredibus dedit’, hereditarias.
8 Pomponius, On Sabinus, Book VIII. Where a slave is ordered to be free if he pays ten aurei, he must pay them to the heir; for when there is no one designated to whom payment shall be made, the slave will be entitled to his freedom by paying the heir. 1If each one of the heirs sells his share in a slave to different purchasers, the slave must pay to every purchaser the same proportion of the sum which was due to each heir. Labeo, however, says that if the names of the heirs are only mentioned in the will, equal portions should be paid them; but if the testator said “If he pays my heirs,” the amounts will correspond to the shares of the estate to which the heirs are respectively entitled.
9 Ulpianus libro vicensimo octavo ad Sabinum. Statuliberum medio tempore servum heredis esse nemo est qui ignorare debeat: eapropter noxae dedi poterit, sed deditus sperare adhuc libertatem poterit: nec enim deditio spem illi adimit libertatis. 1Si statuliberum non eadem condicione heres vendat, causa eius immutabilis est et luere se ab eo potest simili modo ut ab herede. si tamen suppresserit condicionem statuliberi? et ex empto quidem tenetur: graviores autem etiam stellionatus crimen inportant ei, qui sciens dissimulata condicione statutae libertatis simpliciter eum vendiderit. 2Illud tractatum est, an liberatio contingat ei qui noxae dederit statuliberum. et Octavenus putabat liberari: et idem dicebat et si ex stipulatu Stichum deberet eumque statuliberum solvisset: nam et si ante solutionem ad libertatem pervenisset, extingueretur obligatio tota: ea enim in obligatione consistere, quae pecunia lui praestarique possunt, libertas autem pecunia lui non potest nec reparari potest. quae sententia mihi videtur vera. 3Statuliberi condicio ita demum immutabilis est, si adita hereditas fuerit: ceterum ante aditam hereditatem in propriam usucapitur servitutem libertatisque spes infringitur: sed adita postea hereditate spes libertatis favore sui redintegrabitur.
9 Ulpianus, On Sabinus, Book XXVIII. No one should be ignorant of the fact that, in the meantime, the slave remains the property of the heir. Hence, he can be surrendered by way of reparation for damage caused by him, but even if this is done, he can still hope to obtain his freedom, for his surrender does not deprive him of it. 1If an heir sells a slave under a different condition than the one upon which his freedom is dependent, his status is not changed; and he can release himself from the control of the purchaser, just as he can do from that of the heir. If, however, the heir should conceal the condition upon which the slave is to be liberated, he will be liable to an action on purchase; and good authorities hold that anyone who knowingly conceals the condition under which a slave is to become free, and sells him absolutely, is guilty of swindling. 2The question has been discussed whether he is released, who has delivered up a slave, that was to be conditionally free, by way of reparation for injury committed. Octavenus thinks that he is released, and says that the same rule will apply if someone owed Stichus on account of a stipulation, and delivered him to be free under a certain condition. For if he should obtain his freedom before payment had been made, the entire obligation would be extinguished; because only that is included in it which can be settled by the payment of money; freedom, however, cannot be discharged or replaced by money. This opinion seems to me to be correct. 3The position of a slave who is to be conditionally free is only unchangeable, if the estate is entered upon; for, before this is done, he can be acquired as a slave by usucaption, and the expectation of his freedom disappears. If, however, the estate is entered upon subsequently, his hope of freedom is restored through the favor with which it is regarded.
10 Paulus libro quinto ad Sabinum. Si decem dare iussum heres vendiderit et tradiderit dixeritque adscriptum libertati, si viginti dedisset, ex empto erit actio cum venditore, aut, si dupla promissa est, ob evictionem dumtaxat duplae repetitio erit, ex empto ob mendacium.
10 Paulus, On Sabinus, Book V. If an heir sells a slave who had been ordered to pay ten aurei, and delivers him to the purchaser, and says that he was entitled to his freedom if he pays twenty aurei, an action on purchase will lie against the vendor. If double the amount had been promised, an action for double damages will lie on the ground of eviction, and an action on purchase on account of the false statement.
11 Pomponius libro quarto decimo ad Sabinum. Si heres pecuniam donasset statulibero, ut sibi eam daret et liber esset, non fieri liberum Aristo ait: sed si in plenum ei donasset, fieri liberum.
11 Pomponius, On Sabinus, Book XIV. If the heir should make a donation of a sum of money to a slave, who is to be conditionally free, in order that he may pay it to him and be liberated, Aristo says that he will not become free, but if the heir should give him the money absolutely he will obtain his freedom.
12 Iulianus libro septimo digestorum. Si quis testamento libertatem acceperit sub condicione, si rationem dederit, debet pro hereditaria parte heredibus reliqua solvere, etiamsi nomina quorundam heredum sint in condicione posita.
12 Julianus, Digest, Book VII. Where a slave receives his freedom by a will, under the condition of rendering an account, he must pay the balance remaining in his hands to the heirs, in proportion to their respective shares of the estate; even if the names of some of them are mentioned in the condition.
13 Idem libro quadragensimo tertio digestorum. Si quis ita libertatem dedisset ‘Stichus, si eum heres meus testamento suo non manumiserit, liber esto’, secundum voluntatem defuncti hoc significari videtur ‘si testamento suo heres non adscripserit ei libertatem’. quare si quidem heres libertatem servo testamento suo dederit, defectus condicione videtur: si non dederit, impleta condicione ultimo vitae tempore heredis ad libertatem perveniet. 1Servus communis liber esse iussus ita ‘si decem dederit’ ex peculio dare potest, quod quocumque modo adquisitum habuerit: nec refert, apud heredem id an apud socium fuerit et heredi an extraneo dare iussus sit. nam per omnia causae statuliberi applicatur: qui condicionis implendae gratia alienare peculiares nummos potest. 2Si duo servi rationibus redditis liberi esse iussi fuerint et separatim rationes gesserint, non dubie separatim quoque condicioni parere poterunt. sed si actus eorum communiter gestus ita immixtus fuerit, ut separari non possit, necessario alter cessando alterius libertatem impediet. nec videbitur condicio in alterius persona impleta, nisi id, quod computatione rationum habita reliquum fuerit, aut uterque aut alter totum solverit. 3Qui ita liber iussus est ‘si iuraverit se Capitolium ascensurum’, confestim ut iuraverit, quamvis Capitolium non ascenderit, liber erit. 4Servus heredis rem ipsius heredis dare iussus et liber esse ad libertatem perveniet, quia potest testator et sine ulla dandi condicione heredis servum manumitti iubere. 5Haec scriptura ‘Stichus cum erit annorum triginta, liber esto. Stichus si decem non dederit, liber ne esto’ hanc vim habet ‘Stichus si decem dederit et ad annos triginta pervenerit, liber esto’: namque ademptio libertatis vel legati sub condicione facta incipit contrariam condicionem legato vel libertati, quae prius data erat, iniecisse.
13 The Same, Digest, Book XLIII. Where a testator bequeaths a grant of freedom as follows, “Let Stichus be free, if my heir does not manumit him by his will,” the intention of the testator is held to be that the slave will be free if the heir does not grant him freedom by his will. Hence, if the heir should emancipate the slave by his will, the condition is considered to have failed; if he does not emancipate him, the condition will be fulfilled at the time of the death of the heir, and the slave will obtain his freedom. 1If a slave held in common is ordered to be free under the condition of his paying ten aurei, he can pay the said sum out of his peculium, no matter in what way he may have obtained it; nor does it make any difference whether the peculium was in the hands of the heir, or in those of a joint-owner; or whether the slave was ordered to pay the money to the heir, or to a stranger. For it is a rule of general application that slaves who are to be free conditionally can alienate property belonging to their peculium for the purpose of complying with a condition upon which their freedom is dependent. 2Where two slaves are ordered to be free on condition of rendering their accounts, and they have transacted business separately, there is no doubt that they can also comply with the condition separately. If, however, their administration has been conducted in common, and is so confused that it cannot be divided, it necessarily happens that if one of them fails to render an account, he will prevent the other from obtaining his freedom; nor will the condition be held to have been complied with with reference to one of them, unless both or either should pay all which may be found to be due as a balance after examination of the accounts. 3Where a slave is ordered to be free under the condition that he will swear that he will ascend to the Capitol, and immediately takes such an oath, he will become free even if he does not ascend to the Capitol. 4The slave of the heir, who is ordered to deliver property belonging to the heir himself, and be free, will be entitled to his freedom, because the testator can order the slave of the heir to be manumitted without imposing the condition of giving anything. 5The following clause, “Let Stichus be free when he is thirty years old; Stichus shall not be free unless he pays ten aurei,” has the same effect as if it had been said that they should let Stichus be free if he pays ten aurei and reaches the age of thirty years. For the deprivation of freedom, or of the legacy which is bequeathed under a certain condition, is considered to impose the contrary condition upon the legacy or the grant of freedom previously made.
14 Alfenus Varus libro quarto digestorum. Servus, qui testamento domini, cum decem heredi dedisset, liber esse iussus erat, heredi mercedem referre pro operis suis solebat: cum ex mercede heres amplius decem recepisset, servus liberum esse aiebat: de ea re consulebatur. respondit non videri liberum esse: non enim pro libertate, sed pro operis eam pecuniam dedisse nec magis ob eam rem liberum esse, quam si fundum a domino conduxisset et pro fructu fundi pecuniam dedisset. 1Servus cum heredi annorum septem operas dedisset, liber esse iussus erat: is servus fugerat et annum in fuga fecerat. cum septem anni praeterissent, respondit non esse liberum: non enim fugitivum operas domino dedisse: quare nisi totidem dies, quot afuisset, servisset, non fore liberum. sed et si ita scriptum esset, ut tum liber esset, cum septem annis servisset, potuisse liberum esse, si tempus fugae reversus servisset.
14 Alfenus Varus, Digest, Book IV. A slave, who was ordered to be free by the will of his master under the condition of paying ten aurei to the heir, paid to the latter the wages of his labor, and as the heir received from the same a larger sum than ten aurei, the slave alleged that he was free. Advice was taken on this point. The answer was that the slave did not appear to be free, as the money which he had paid was not in consideration of his freedom, but on account of the labor which he had performed; and that he was no more free on this account than if he had leased a tract of land from his master and paid him the money instead of giving him the crops. 1A slave was ordered to be free after he had given his services to the heir for the term of seven years. He took to flight and remained absent for a year. When the seven years had expired, the opinion was given that he was not free, for he had not rendered his services to his master while he was a fugitive, and he would not become free until he had served his master for the number of days that he was absent. If, however, it had been stated in the will that he should be free after he had served seven years, he could become free if he served his master for the time of his flight, after his return.
15 Africanus libro nono quaestionum. Mortuo herede si statuliber locupletiorem hereditatem tanta pecunia, quantam dare sit iussus, fecerit, veluti creditoribus solvendo, cibaria familiae dando: statim eum ad libertatem esse venturum existimavit. 1Heres cum statuliberum decem dare iussum venderet, condicionem pronuntiavit et traditioni legem dixit, ut sibi potius quam emptori eadem decem darentur: quaerebatur, utri eorum statuliber pecuniam dando libertatem consequeretur. respondit heredi eum dare debere. sed et si talem legem dixisset, ut extraneo alicui statuliber pecuniam daret, respondit et hoc casu conventionem valere, quia heredi videtur solvere, qui voluntate eius alii solvit.
15 Africanus, Questions, Book IX. If a slave who was ordered to pay a certain sum of money at the death of the heir should have enriched the estate by an amount equal to that which he was ordered to pay, for instance, if he had paid the creditors, or had furnished the slaves with food, it was held that he would immediately be entitled to his liberty. 1An heir, who sold a slave who was to become free on the payment of ten aurei, stated at the time when he sold him that the condition was that the said ten aurei should be paid to him and not to the purchaser. The question arose, to which of the two must the slave pay the money in order to obtain his freedom? The answer was that he must pay it to the heir. If, however, he had stated the condition to be that the slave should make payment to a stranger, the opinion was given that the agreement would be valid, because the slave is considered to pay the heir, if he pays someone else with the former’s consent.
16 Ulpianus, Rules, Book IV. If a female slave who is to be free conditionally has a child, it will be the slave of the heir.
17 Neratius libro tertio membranarum. Si decem heredi dedisset, iussus est liber esse: decem habet et tantundem domino debet: dando haec decem non liberabitur. nam quod statulibero ex peculio suo dare explendae condicionis causa concessum est, ita interpretari debemus, ut non etiam ex eo dare possit, quod extra peculium est. nec me praeterit hos nummos peculiares posse dici, quamvis, si nihil praeterea servus habeat, peculium nullum sit. sed dubitari non oportet, quin haec mens fuerit id constituentium, ut quasi ex patrimonio suo dandi eo nomine servo potestas esset, quia id maxime sine iniuria dominorum concedi videbatur. quod si ultra quis progredietur, non multum aberit, quin etiam eos nummos, quos domino subripuerit, dando statuliberum condicioni satisfacturum existimet.
17 Neratius, Parchments, Book III. A slave is ordered to be free if he pays ten aurei to the heir. He has the amount, but he owes an equal sum to his master. He will not be free by payment of these ten aurei, because where a slave is permitted to pay money out of his peculium for the purpose of complying with a condition, we must understand this to mean that he must not pay what does not belong to his peculium. I am perfectly aware that this money can be said to form part of his peculium; although if the slave had nothing else, he would have no peculium. But it cannot be doubted that the intention of those who established the rule was that the slave should have the power of making payment out of his peculium, just as out of his patrimony, because this could be conceded as being done without any injury to his master. If, however, anyone should go farther, the case would not differ much from one where a person might hold that the slave complied with the condition by the payment of money which he had stolen from his master.
18 Paulus libro singulari de libertatibus dandis. Si triennio dena dare iussus primo anno viginti optulerit, non accipiente herede non statim liber est, quia et si accepisset heres, nondum liber esset.
18 Paulus, On the Granting of Freedom. If a slave is ordered to pay ten aurei annually for three years, and offers ten the first year, and the heir does not accept it, he will not immediately become free, for the reason that even if the heir did accept it, he would not be free.
19 Ulpianus libro quarto decimo ad edictum. Si servus liber esse iussus sit et legatum ei datum, si filius quartum decimum annum compleverit, et filius ante decesserit: libertas favore competet die veniente, legati autem condicio deficit.
19 Ulpianus, On the Edict, Book XIV. Where a slave is ordered to be free, and a legacy is left to him to vest when the son of the testator shall reach his fourteenth year, and the son dies before that time, the slave will become free when the term has expired, on account of indulgence with which freedom is regarded; but the condition upon which the legacy is dependent is held to have failed.
20 Paulus libro sexto decimo ad Plautium. Si peculium servo legatum sit, qui iussus est alii dare decem et sic liber esse, et heres eum prohibuerit dare, deinde manumissus peculium petat ex causa legati, an per doli exceptionem eam summam, quam daturus esset, deducere heres possit, ut ipsi prosit, non manumisso, quod ea pecunia data non est? an vero indignus sit heres, qui contra voluntatem defuncti fecit, eam pecuniam lucrari? et cum servo nihil absit et libertas ei competit, invidiosum est heredem fraudari. 1De illo quaeritur, si invito herede det aut nesciente, an faciat nummos accipientis. et Iulianus vere existimat ex hac causa concessam videri statuliberis alienationem nummorum etiam invito herede et ideo facere eos accipientis pecuniam. 2Quod si heredi dare iussus est decem et eam summam heres debeat servo: si velit servus eam pecuniam compensare, erit liber. 3Is, cui servus pecuniam dare iussus est ut liber esset, decessit. Sabinus, si decem habuisset parata, liberum fore, quia non staret per eum, quo minus daret. Iulianus autem ait favore libertatis constituto iure hunc ad libertatem perventurum, etiamsi postea habere coeperit decem. adeo autem constituto potius iure quam ex testamento ad libertatem pervenit, ut, si eidem et legatum sit, mortuo eo cui dare iussus est ad libertatem quidem perveniet, non autem et legatum habiturus est: idque et Iulianus putat, ut in hoc ceteris legatariis similis sit. diversa causa est eius, quem heres prohibet condicioni parere: hic enim ex testamento ad libertatem pervenit. 4Heredi autem iussum dare etiam heredis heredi dare posse divus Hadrianus rescripsit: et si hoc sensit testator, etiam in legatario idem dicendum est. 5Quaedam condiciones natura sui nec possunt eodem tempore impleri, sed necessariam habent temporis divisionem, velut cum decem operarum iussus est dare, quia operae per singulos dies dantur. igitur et si singulos aureos det statuliber, potest dici eum implesse condicionem. alia causa est operarum, quia hae necessario singulae edendae sunt. sed et si heres accipere noluerit, non statim liber erit, sed cum tempus transierit, per quod operarum quantitas consummatur. idem dicendum est, si iussum Capuam ire et liberum esse heres prohibeat ire: tunc enim erit liber, cum pervenire Capuam potuisset: inesse enim videtur tempus tam operarum praestationi quam itineri. 6Si ita quis acceperit libertatem ‘Stichus, si heres eum non manumiserit, liber esto’, poterit ab herede manumitti: non contra voluntatem testatoris adimitur ei libertus. sed non tam continuum tempus exigendum est, ut praecipitari cogatur heres vel ex peregrinatione celerius reverti ad manumittendum vel administrationem rerum necessariarum intermittere, nec rursus tam longum, ut, quamdiu vivat, protrahatur manumissio, sed modicum, quo primum possit sine magno incommodo suo heres manumittere. quod si tempus adiectum fuerit, illud spectabitur.
20 Paulus, On Plautius, Book XVI. When his peculium is bequeathed to a slave who was ordered to pay ten aurei to a stranger, and become free, but the heir prevents him from paying it, and the slave, having afterwards been manumitted, demands his peculium by virtue of the legacy, can the heir, by means of an exception on the ground of bad faith, deduct from his peculium the sum which the slave should have paid in order that he, and not the manumitted slave, may be benefited, because the money was not paid; or will the heir be considered unworthy to profit by the money, having acted contrary to the will of the deceased? As the slave lost nothing, and gained his freedom, it would be invidious for the heir to be fraudulently deprived of the money. 1In this case the question arises, if the slave should pay the money without the knowledge or consent of the heir, whether it would belong to the person who received it. Julianus very properly thinks that, in this instance, the right of the slave to pay the money is admitted even against the consent of the heir; and therefore it will become the property of him who receives it. 2If a slave is ordered to pay ten aurei to the heir, and the latter owes that sum to the slave, if the slave wishes to set off the amount, he will become free. 3A man to whom a slave was ordered to pay a certain sum of money in order to become free, died. Sabinus holds that if he had the ten aurei ready for payment, he would become free, because it was not his fault that they were not paid. Julianus, however, says that on account of the favor with which liberty is regarded, and by the law, as established, the slave will obtain his freedom even if the money was paid after his death, hence he obtains his freedom rather under the law than by virtue of the will; so that if a legacy was bequeathed to him at the time of the death of the person to whom he was directed to pay the money, he will obtain his freedom, but he will not be entitled to the legacy. Julianus is of the same opinion, so that, in this instance, he resembles other legatees. The case of a slave whom the heir prevents from complying with the condition is, however, different; for, in this instance, he obtains his freedom under the will. 4The Divine Hadrian stated in a Rescript that a slave who is ordered to pay a sum of money to the heir can pay it to the heir of the latter; and, if this was the intention of the testator, the same rule must be held to apply to a legatee. 5There are certain conditions which, by their nature, cannot be complied with simultaneously, but require a division of time; as, for example, where a slave is ordered to give the value of ten aurei in labor, because labor is reckoned by days. Therefore, if a slave who is to be free conditionally pays the aurei, one by one, he can be said to have complied with the condition. The case of labor is, however, different because it can necessarily only be performed a part of the time. But if the heir refuses to accept it, the slave will not become free immediately, but after the time required for the labor to be performed has elapsed. The same rule will apply where the slave is ordered to go to Capua and be free, and the heir forbids him to go; for then he will be free when the time necessary for him to go to Capua has expired, for time is considered essential in the performance of labor, as well as in making a journey. 6If a slave should receive his freedom as follows, “Let Stichus be free if my heir should not manumit him,” he can be manumitted by the heir, and he is not deprived of his liberty contrary to the will of the testator. But so short a time is not required that the heir will be compelled to hasten or to return from his journey immediately in order to manumit the slave, or to desist from the transaction of necessary business for that purpose. Nor, on 1,he other hand, can the manumission be protracted for his lifetime, but the heir should emancipate the slave as soon as he can do so without great inconvenience to himself. If a time for the manumission has been prescribed, it must be taken into consideration.
21 Pomponius libro septimo ex Plautio. Labeo libro posteriorum ita refert: ‘Calenus dispensator meus, si rationes diligenter tractasse videbitur, liber esto suaque omnia et centum habeto’. diligentiam desiderare eam debemus, quae domino, non quae servo fuerit utilis. erit autem ei diligentiae coniuncta fides bona non solum in rationibus ordinandis, sed etiam in reliquo reddendo. et quod ita scriptum est ‘videbitur’, pro hoc accipi debet ‘videri poterit’: sic et verba legis duodecim tabularum veteres interpretati sunt ‘si aqua pluvia nocet’, id est ‘si nocere poterit’. et si quaereretur, cui eam diligentiam probari oporteat, heredum arbitratum viri boni more agentium sequi debebimus, veluti si is, qui certam pecuniam dedisset, liber esse iussus est, non adscripto eo, cui si dedisset, eo modo poterit liber esse, quo posset, si ita fuisset scriptum ‘si heredi dedisset’. 1Pactumeius Clemens aiebat, si ita sit fideicommissum relictum ‘cui eorum voles, rogo restituas’, si nullum elegisset cui restitueret, omnibus deberi imperatorem Antoninum constituisse.
21 Pomponius, On Plautius, Book VII. Labeo, in his Book of Last Works, states the following case: “Let Galenus, my steward, be free, if he appears to have carefully conducted my business, and let him retain all his property, and receive a hundred aurei in addition.” In this instance we should require such diligence as will benefit the master and not the slave. Moreover, good faith should be added to the diligence, not only in keeping the accounts, but also in the payment of any balance which may remain. By the word “appears” is meant “can be considered to have.” The ancients interpreted the following words of the Law of the Twelve Tables, “If rain-water causes damage,” to mean if it can cause damage. And if this question is asked before whom the abovementioned diligence must be established, we must answer that this ought to be decided by the heirs in accordance with the judgment of a reliable citizen; for instance, if a slave is ordered to be free on condition of his paying a certain sum of money, and it is not stated to whom he shall pay it, he will become free just as he would if the testator had written, “If he should pay the sum to my heir.” 1Pactumeius Clemens said that if a trust had been bequeathed as follows, “I charge you to deliver it to whichever of them you choose,” and the heir did not make any choice as to whom he should deliver the property, he must deliver it to all, and this was decreed by the Emperor Antoninus.
22 Paulus libro tertio ad Vitellium. Qui pecuniam dare iussus est, nisi adiectum sit, cui det, heredibus dare debet pro partibus hereditariis: pro ea enim parte quisque accipere debet, pro qua dominus est. 1Si quidam ex heredibus, quibus dare debeat, nominati sint, dabit his pro hereditariis portionibus. 2Si heredibus nominatis etiam extraneus iunctus sit, extraneo virilis, ceteris hereditariae dari debent: et si non solum Titium, sed etiam alios adiecisset, hos virilem partem habituros, coheredes autem hereditarias Iulianus scribit.
22 Paulus, On Vitellius, Book III. Where a slave was ordered to pay a certain sum of money, and the person to whom he was to pay it was not mentioned, he must pay it to the heirs in proportion to their respective shares of the state, for each one of them must receive a share in proportion to his ownership of the slave. 1Where certain heirs are mentioned by the testator as those to whom the slave is required to make payment, he must do so in proportion to their respective shares of the estate. 2If a stranger is joined with the heirs who are mentioned, the full share must be paid to him, and amounts in proportion to their respective shares of the estate should be paid to the others. If the testator not only added Titius, but others besides, they will each be entitled to a full share, and their co-heirs to amounts in proportion to their interest of the estate; as is stated by Julianus.
23 Celsus libro vicensimo secundo digestorum. ‘Si intra quinquennium Stichus centum dederit, liber esto’: nec Titio vel heredi vel emptori post quinquennium dabit. 1Si rationes reddidisset, liberum esse iussum non patitur heres rebus peculiaribus venditis reliqua solvere: perinde liber est, quasi condicioni paruerit.
23 Celsus, Digest, Book XXII. “Let Stichus be free if he pays a hundred aurei in five years.” The slave, after the five years have elapsed, can pay the said amount to the heir of the purchaser. 1Where the slave was ordered to be free if he rendered his accounts, and the heir, after the property belonging to the peculium has been sold, does not permit the slave to pay over the balance in his hands, he will be free just as if he had complied with the condition.
24 Marcellus libro sexto decimo digestorum. ‘Stichus, si heredi meo decem promiserit vel operas daturum se iuraverit, liber esto’. potest expleri condicio, si promiserit: nam spopondisse aliqua significatione dici potest, etiamsi non sit secuta obligatio.
24 Marcellus, Digest, Book XVI. “Let Stichus be free if he promises my heir ten aurei, or swears to give him his services.” The condition will be fulfilled if the slave makes the promise, for it can be said that he has, to a certain extent, bound himself, even if the obligation may not be compulsory.
25 Modestinus libro nono differentiarum. Statuliberos venumdari posse leges duodecim tabularum putaverunt: duris autem condicionibus in venditione minime onerandi sunt, veluti ne intra loca serviant neve umquam manumittantur.
25 Modestinus, Differences, Book IX. The Laws of the Twelve Tables are held to permit slaves, who are to be free conditionally, to be sold. In making the sale, rigorous conditions should, however, hot be imposed; for example, that the slave should not serve in a certain country, or should never be manumitted.
26 Idem libro nono regularum. Libertate servo sub condicione rationis redditae testamento data heres non solum scriptam rationem exigit, verum etiam quae sine scriptura ab eo administrata est. 1Servus iussus reddita ratione ad libertatem pervenire, licet nullam administraverit rationem, nihilo minus erit liber.
26 The Same, Rules, Book IX. Where freedom has been granted to a slave by a will, under the condition that he renders his account, the heir can not only require a written account, but also one of any business which has been transacted without having been committed to writing. 1Where a slave was ordered to obtain his freedom after having rendered his account, he will still become free even if he has not transacted any business.
27 Idem libro primo pandectarum. Si is, cui dare iussus est, redemerit statuliberum eumque rursus alii vendiderit, novissimo emptori dabit: iam enim cum apud eum, cui dare iussus est, dominium quoque servi pervenit, si eum alienet, condicionem quoque ab eo ad emptorem transire Iuliano placuit.
27 The Same, Pandects, Book I. If the person to whom the slave is ordered to make payment should purchase him, and then sell him to another, he must pay the last purchaser, for Julianus decided that if he to whom the slave was ordered to make payment obtains the ownership of him, and alienates him, the condition will also pass to the purchaser.
28 Iavolenus libro sexto ex Cassio. Si hereditas eius, qui servum, intra dies triginta mortis suae si rationes reddidisset, liberum esse iusserat, post dies triginta adita est, iure quidem stricto ita manumissus liber esse non potest, quoniam condicione deficitur: sed favor libertatis eo rem perduxit, ut respondeatur expletam condicionem, si per eum, cui data esset, non staret quo minus expleretur. 1Statuliber, antequam condicio libertatis optigerit, si quid comparasset, peculio legato non cessurum in libris Gaii Cassii scriptum est, nisi id legatum in tempus libertatis collatum esset. videamus, ne, cum peculium et accessionem et decessionem habeat, augmentum quoque eius peculii, si modo ab herede ei ablatum non sit, legato cessurum sit: et magis hoc iure utimur.
28 Javolenus, On Cassius, Book VI. Where the estate of a person who directed that his slave should become free within thirty days after his death, if he rendered his accounts, was not entered upon until after the thirty days had expired, the manumitted slave cannot become free by the strict construction of the law, as the condition was not fulfilled; but the indulgence with which freedom is regarded causes the condition to be considered as complied with, if it was not the fault of the person upon whom it was imposed that this was not done. 1It is stated in the Books of Gaius Cassius that if a slave, who is to be conditionally free, should acquire any property before the condition upon which his liberty is dependent is complied with, it will not be embraced in the bequest of his peculium, unless the legacy was made to include the time when he was free. As the peculium is susceptible of both increase and diminution, let us see whether its increase by the heir will form part of the legacy, provided the slave is not deprived of it. This is our present practice.
29 Pomponius libro octavo decimo ad Quintum Mucium. Statuliberi a ceteris servis nostris nihilo paene differunt. et ideo quod ad actiones vel ex delicto venientes vel ex negotio gesto contractu pertinet, eiusdem condicionis sunt statuliberi cuius ceteri. et ideo in publicis quoque iudiciis easdem poenas patiuntur, quas ceteri servi. 1Quintus Mucius scribit: pater familias in testamento scripserat ‘si Andronicus servus meus heredi meo dederit decem, liber esto’. deinde de his bonis coeperat controversia esse: qui se lege heredem aiebat esse, is eam hereditatem ad se pertinere dicebat, alter, qui hereditatem possidebat, aiebat testamento se heredem esse. secundum eum sententia dicta erat, qui testamento aiebat se heredem esse. deinde Andronicus quaerebat, si ipsi viginti dedisset, quoniam secundum eum sententia dicta est, futurusne esset liber an nihil videatur sententia, qua vicit, ad eam rem valere? quapropter si viginti heredi scripto dedisset et res contra possessorem iudicata esset, illum in servitute fore. Labeo hoc, quod Quintus Mucius scribit, ita putat verum esse, si re vera lege ab intestato heres fuit is qui vicit: nam si iniuria iudicis victus esset scriptus verus heres ex testamento, nihilo minus eum paruisse condicioni ei dando et liberum fore. sed verissimum est, quod et Aristo Celso rescripsit, posse dari pecuniam heredi ab intestato, secundum quem sententia dicta est, quoniam lex duodecim tabularum emptionis verbo omnem alienationem complexa videretur: non interesse, quo genere quisque dominus eius fieret et ideo hunc quoque ea lege contineri, secundum quem sententia dicta est, et liberum futurum eum, qui ei dedisset pecuniam. hunc autem, id est possessorem hereditatis, cui data esset summa, si victus esset hereditatis petitione, cum ceteris hanc quoque pecuniam victori restituere debere.
29 Pomponius, On Quintus Mucius, Book XVIII. Slaves who are to be free conditionally scarcely differ, in any respect, from our other slaves. Therefore, they are in the same position as the others with reference to legal actions, whether these arise from crimes, from business transacted, or from contracts. The result of which is that in public prosecutions they are liable to the same penalties as other slaves. 1Quintus Mucius says that the head of a household stated in his will, “Let my slave Andronicus be free, provided he pays ten aurei to my heirs.” A controversy then arose with reference to the estate. One person declared that he was the heir, and alleged that it belonged to him, and another who was in possession of the estate said that he was the heir under the will. Judgment was rendered in favor of the one who said that he was the heir under the will. Then Andronicus asked, if he should pay twenty aurei to the latter, whether he would become free, as judgment had been rendered in his favor; or whether the judgment which the successful party had obtained had no reference to the matter in question; hence, if he paid the ten aurei to the appointed heir, and the case should be decided against the possessor, he would remain in slavery. Labeo thinks that the opinion of Quintus Mucius can only be true, if the heir who gained the case should be decided to be the heir at law; for if the appointed heir should be found to have lost his case, through a just decision, and be held entitled to the estate under the will, the slave by paying him, will, nevertheless, comply with the condition, and will become free. The opinion given by Aristo to Celsus is, however, perfectly correct, namely, that the money can be paid to the heir at law in favor of whom judgment has been rendered; as under the provisions of the Twelve Tables the term “purchase” is understood to have included every kind of alienation, and it makes no difference in what way any of the parties became the master of the slave; and therefore, he in favor of whom judgment was rendered is included in the law, and the slave who paid the money will be free. Moreover, if he who is in possession and to whom the money was paid should be beaten in a contest for the estate, he will be obliged to surrender the money together with the property to the party who is successful.
30 Idem libro septimo ex variis lectionibus. Si ita liber esse iussus sit ‘Stichus, si eum heres non alienaverit, liber esto’, etiamsi statuliber est, alienari tamen poterit.
30 The Same, On Various Lessons, Book VII. Where a slave is ordered to be free as follows, “Let Stichus be free, if my heir does not alienate him,” even if he is to be free conditionally, he can, nevertheless, be alienated.
31 Gaius libro tertio decimo ad legem Iuliam et Papiam. Si servo sub condicione rationum editarum legatum sit, per eam condicionem eum iussum esse legatum accipere, ut pecuniam reliquorum reddat, non dubitatur. 1Et ideo cum quaesitum est ‘Stichus cum rationes dederit, cum contubernali sua liber esto’ an mortuo Sticho ante condicionem contubernalis eius libera esse possit: Iulianus dixit quaestionem esse in hac specie, quae et in legatis agitatur ‘illi cum illo do’, an altero deficiente alter ad legatum admittatur: quod magis sibi placere, perinde ac si ita scriptum esset ‘illi et illi’. aliam etiam esse quaestionem, an contubernali quoque condicio iuncta sit: quod magis esset. itaque si nulla reliqua Stichus habuerit, statim eam liberam esse, si habuerit reliqua, debere eam numerare pecuniam: nec tamen liciturum ex suo peculio dare, quia id illis permissum sit, qui principaliter pro sua libertate pecuniam dare iubentur.
31 Gaius, On tine Lex Julia et Papia, Book XIII. If a legacy is bequeathed to a slave on the condition of his rendering his accounts, there is no doubt that, under the condition by which he is directed to receive the legacy, he must pay over any balance remaining in his hands. 1Therefore, when inquiry was made with reference to the following clause, “Let Stichus, together with his female companion, be free, after he has rendered his accounts,” and Stichus should die before the condition is complied with, will his companion be free? Julianus says that there is a point in this case which also arises with respect to legacies, as where a testator says, “I give to So-and-So together with So-and-So,” and one of the parties is lacking, the other is permitted to take the legacy; because the better opinion is that the case is just as if the testator had said, “I give to So-and-So and So-and-So.” It is also said that there is another question, namely, whether the condition is also imposed upon the female companion. It is held that this is the case; hence, if Stichus has no balance in his hands, the woman will immediately become free; but if a balance remained in his hands, she must pay the money, nor will it be lawful for her to take it out of the peculium, because this is only permitted to those who are directed to make payment in their own names, in consideration of the freedom which is granted them.
32 Licinnius Rufinus libro primo regularum. Si duobus heredibus institutis servus liber esse iussus sit, si decem heredibus dederit, ab altero ex heredibus venierit et traditus fuerit, pro parte alteri ex heredibus, a quo non venierit, dando pecuniam liber erit.
32 Licinius Rufinus, Rules, Book I. Where two heirs are appointed, and a slave is ordered to be free if he pays ten aurei to the heirs, and he is sold and delivered by one of the latter, he will become free by paying half of the sum to the other heir by whom he was not sold.
33 Papinianus libro secundo quaestionum. Statuliberorum iura per heredem fieri non possunt duriora.
33 Papinianus, Questions, Book II. The rights of slaves who are to be conditionally free cannot be injuriously affected by the heir.
34 Idem libro vicensimo primo quaestionum. Servus si heredi decem dederit, liber esse iussus est: statuliberum heres eum manumisit ac postea defunctus est. heredis heredi pecunia danda non est: quod enim placuit heredis heredi dari oportere, tunc memineris locum habere, cum prior heres dominus accepturus pecuniam fuit. quae causa facit ambulatoriam, ut ita dixerim, condicionem: duae sunt enim causae, per quas in primi heredis persona condicio impletur, dominii ratio, item personae demonstratio: prior causa transit in omnem successorem, ad quem pervenerit statuliber per dominii translati continuationem, sequens personae dumtaxat eius, qui demonstratus est, adhaeret. 1Imperator Antoninus rescripsit iussum rationes reddere et liberum esse, si heres causabitur accipere rationes, nihilo minus liberum fore. quod rescriptum ita accipi debet, ut, si reliqua non trahat, liber sit: quod si trahat, ita demum, si optulit eam quantitatem, quae refundi debuit ex fide veritatis: non enim libertati sufficit heredem in mora fuisse, si non id fiat per statuliberum, quod remota mora libertati aditum daret. quid enim si ita manumissum ‘Dama si in Hispaniam profectus anno proximo fructus coegerit, liber esto’ Romae retineat heres neque proficisci patiatur? numquid dicturi sumus statim ante fructus coactos liberum fore? nam et cum Romae stipulatio concipitur ita ‘centum in Hispania dare spondes?’, inesse tempus stipulationi, quo possit in Hispaniam pervenire, nec ante iure agi placuit. sed si heres acceptis rationibus et reliquis computatis donare se ea statulibero non habenti quod inferat proscribat aut etiam litteris ad eum missis palam faciat, condicio libertatis impleta videbitur. quid ergo, si neget se reliqua traxisse atque ideo, quia per heredem steterit, ut accipiat rationes, liberum factum, heres autem neque se fecisse moram et reliqua debere statuliberum contendat? apud eum qui de libertate cognoscit, an condicio sit impleta, constabit: cuius officio continebitur de mora considerare nec minus computare rationes et, si reliqua trahi compererit, non esse liberum pronuntiare. sed si numquam negavit reliqua debere, cum autem conveniret heredem et rationes offerret, professus sit refusurum, quidquid in reliquis esse constiterit et eius pecuniae reum numerare paratum idoneum optulit et heres in mora fuit: sententia pro libertate dicetur.
34 The Same, Questions, Book XXI. A slave was ordered to be free if he paid ten aurei to the heir. The heir manumitted the slave, and afterwards died. In this instance, the money should not be paid to the heir of the heir; for when it was decided that he must pay the heir of the heir, you will remember that this applied where the first heir who was to receive the money was the master of the slave; which rendered the condition (so to speak), ambulatory. There are, in fact, two reasons for which the condition should be complied with so far as the first heir is concerned; the first one is the ownership, and the second the designation of the person. The first reason applies to every successor to whom the slave may pass through the continuation of the ownership which is transferred; but the second one only has reference to the person who is especially designated. 1The Emperor Antoninus stated in a Rescript that where a slave was ordered to render his accounts and become free, if the heir should delay in receiving the accounts, the slave will, nevertheless, become free. This rescript should be understood to apply where the slave will become free if he does not defer the payment of the balance in his hands, but if he delays to do so, it will only become operative if he tenders the amount which should be refunded in good faith; for it will not be sufficient for the heir to be in default to enable the slave to be manumitted where nothing was done by him which would have contributed to his freedom, if the heir had not been in default. But what if a slave was manumitted as follows, “Let Damas be free, if he goes to Spain next year to gather the harvest,” and the heir retains him at Rome, and will not suffer him to depart? Can we say that he will immediately be free before the crops are gathered? For if a stipulation is made at Rome, as follows: “Do you promise to pay me a hundred aurei in Spain?” The time during which you may be able to reach Spain is included in the stipulation, and it has been decided that legal proceedings cannot be instituted until this time has elapsed. If, however, the heir, after having allowed the accounts, and calculated the balance due from the slave, declares publicly that he donates the amount to the latter, because he has nothing to pay it with, or if he states this openly in a letter sent to him; the condition upon which his freedom is dependent is held to have been complied with. But what course should be pursued if the slave should deny that he has delayed payment of the balance, and therefore, because the heir is to blame for not receiving his accounts, he should become free, and the heir maintains that he was not responsible for delay, and that the slave should pay over the balance in his hands? It shall be determined by the magistrate who has jurisdiction of the case whether the condition was complied with or not, and it is part of his duty to investigate the alleged default, as well as to cast up the accounts, and if he should ascertain that payment of the balance was delayed, to decide that the slave is not free. If, however, the slave never denied that a balance was due, and should sue the heir in order to be able to render his accounts, and it was established that he was prepared to pay any balance that might remain, and offered a good surety for the payment of the money, and the heir was found to be in default, judgment must be given in favor of freedom.
35 Idem libro nono responsorum. Non videbitur per statuliberum non stare, quo minus condicio libertatis existat, si de peculio, quod apud venditorem servus habuit, pecuniam condicionis offerre non possit: ad alienum enim peculium voluntas defuncti porrigi non potuit. idem erit et si peculio servus venierit et venditor fide rupta peculium retinuerit: quamquam enim ex empto sit actio, tamen apud emptorem peculium servus non habuit.
35 The Same, Opinions, Book IX. The slave will be considered responsible for failure to comply with the condition upon which his liberty is dependent if he cannot pay the money out of the peculium which he had when under the control of the vendor; because the will of the deceased does not extend to his peculium under another owner. The same rule will apply where the slave was sold with his peculium, and the vendor retains it in violation of his contract; for although an action on purchase will lie, still, the slave did not have the peculium when he was under the control of the purchaser.
36 Idem libro secundo definitionum. In tabulis secundis filio servum data libertate substitutum iure statuliberi prudentes munierunt: quod utilitas recipit, scilicet ut cum sua causa alienaretur, ne patris testamentum puer filius rescindat. quae iuris auctoritas citra dilectum ordinis ad secundum quoque vel tertium substitutum porrecta est.
36 The Same, Definitions, Book II. Persons learned in the law have placed in the class of slaves to be conditionally free one who has been substituted for a son with the grant of his freedom by a second will. This rule is useful, as it prevents a son, who is a minor, from annulling his father’s will by permitting the slave to be alienated subject to the charge of his freedom. This interpretation of the law extends, without any distinction, to every case where the slave is substituted either in the second or the third degree.
37 Gaius libro singulari de casibus. Si ita scriptum sit: ‘Stichum Titio do, ut eum manumittat: si non manumiserit, liber esto’, statim Stichum liberum esse.
37 Gaius, On Special Cases. If it is stated in a will, “I give Stichus to Titius, in order that he may manumit him, and if he does not do so, let him be free,” Stichus will immediately become free.
38 Paulus libro primo ad Neratium. Non omne ab heredis persona interveniens inpedimentum statulibero pro expleta condicione cedit, sed id dumtaxat, quod impediendae libertatis factum est.
38 Paulus, On Neratius, Book I. Not every impediment for which the heir is responsible has the same effect as compliance with the condition by the slave, but only where this is done for the purpose of preventing him from obtaining his freedom.
39 Iavolenus libro quarto ex posterioribus Labeonis. ‘Stichum Attio do lego et, si is ei nummos centum dederit, liber esto’. si servus ex testamento nummos Attio dedisset, eos repetere heredem non posse Labeo existimat, quia Attius eos a servo suo acceperit, non ab heredis servo. eum autem statuliberum esse Quintus Mucius, Gallus et ipse Labeo putant: Servius, Ofilius non esse. superiorem sententiam probo, ita tamen, ut is servus heredis, non legatarii sit, utpote cum legatum statulibertate tollatur. 1‘Stichus liber esto, quando aes alienum meum solutum creditoribusve meis satisfactum erit’. quamvis heres locuples extitisset, tamen non prius Stichum liberum futurum, quam creditores pecuniam aut satis accepissent aliove quo modo sibi cavissent, Labeo Ofilius responderunt. 2Si heres servo pecuniam ad negotiandum dedisset, statuliberum eam ipsam numerando liberari ex testamento non posse Labeo Trebatius responderunt, quia reddere eam magis quam dare videretur. ego puto, si peculiares nummi fuerunt, ex testamento eum liberum futurum. 3‘Dama servus cum heredi meo annorum septem operas solverit, liber esto’ et is servus intra septem annos in iudicio publico esset et septimus annus praeterisset, Servius ait eum non liberari debere, Labeo, et si postea solvisset annorum septem operas, liberum futurum: quod verum est. 4‘Si Stichus Attiae mille nummos dederit, liber esto’. Attia vivo testatore decessit: non posse Stichum liberum esse Labeo Ofilius responderunt: Trebatius, si ante testamentum factum Attia decessisset, idem: si postea, eum liberum futurum. Labeonis et Ofilii sententia rationem quidem habet, sed hoc iure utimur, ut is servus ex testamento liber sit. 5Si servus operas extraneo dare iussus esset, nullus nomine servi suas operas dando liberare servum potest: quod in pecunia aliter observatur, utpote cum extraneus pro eo servo dando pecuniam servum liberaret.
39 Javolenus, On the Last Works of Labeo, Book IV. “I give and bequeath Stichus to Attius, and if he pays him a hundred sesterces, let him be free.” If the slave pays the sesterces to Attius under the terms of the will, Labeo holds that the heir cannot recover them, because Attius received them from his own slave, and not from the slave of the heir. Quintus Mucius, Gallus, and Labeo himself think that the slave should be considered conditionally free, and Servius and Ofilius think that he should not. I adopt the former opinion, that is to say, that the slave belongs to the heir and not to the legatee, just as if the legacy had been taken away by the grant of freedom. 1“Let Stichus be free, when my debts are paid, or my creditors are satisfied.” Even though the heir should be rich, Stichus will, nevertheless, not be free before the creditors have received their money, or their claims have been satisfied, or security has been furnished them in some other way; which is the opinion of Labeo and Ofilius. 2Labeo and Trebatius held that if the heir should give a slave money for the purpose of transacting business he cannot become free under the terms of the will, by paying this money, because he is considered rather to have returned it than to have paid it. I think, however, that if the money formed part of his peculium, he will become free under the testamentary provision. 3“Let my slave Damas be free, after he has given his services to my heir for seven years.” The slave was implicated in a capital crime during the seven years, and the last year having elapsed, Servius stated that he should not be liberated. Labeo, however, held that he would be free after having served his master for seven years. This opinion is correct. 4“Let Stichus be free, if he pays a thousand sesterces to Attia.” Attia died during the lifetime of the testator. Labeo and Ofilius were of the opinion that Stichus could not become free. Trebatius agreed with them, if Attia died before the will was made; but if she died afterwards, he held that the slave would be free. The opinion of Labeo and Ofilius is reasonable, but it is our practice to consider the slave as free under the terms of the will. 5Where a slave is ordered to serve a stranger, no one can liberate him by furnishing his own labor in the name of the slave. The rule, however, is different where the payment of money is concerned; as, for instance, where a stranger liberates a slave by paying money in his behalf.
40 Scaevola libro vicensimo quarto digestorum. Sticho libertas data est: ‘ab heredibus meis peto fideique eorum committo, ut rationibus redditis Stichum manumittant’. quaesitum est, cum ampla pecunia exacta post mortem testatoris sibi commissa reliquetur et quasdam summas a colonis exactis rationibus non intulerit hereditatemque spoliaverit apertis clam horreis sublatisque supellectili et veste et apothecis exhaustis: an non prius ei fideicommissa libertas debeatur, quam ea, quae mala ratione reliquatus est quae furatus est, reposuerit. respondit non prius ei fideicommissam libertatem praestandam, quam et reliqua et omnia, quae per eum abessent, restituisset. 1‘Pamphilus liber esto peculio suo heredibus vere dato’. quaesitum est, cum plus domino debeat quam in peculio habeat et omnes res, quas in peculio habebat, bona fide heredibus dederat, an libertas ex testamento competat. respondit nihil proponi, cur non competeret. 2Pamphilo liberto, quem heredem ex parte instituerat, Stichum servum praelegaverat et ei libertatem his verbis dederat: ‘ita ut, si tibi ex die mortis meae per annos continuos quinque menstruos sexagenos dederit, tunc eum manumittas’. Pamphilus ante quinquennium moriens heredibus institutis filio et uxore de eodem Sticho ita cavit: ‘Stichus servus, qui mihi testamento patroni mei certa condicione relictus est, iubeo det praestet filio et uxori meae sine ulla controversia et eum tempore peracto manumittant’. quaesitum est, si Stichus sexagenos nummos menstruos non praestiterit, an impleto quinquennio fideicommissa libertas ei debeatur. respondit, nisi praestitisset, fideicommissam libertatem non deberi. 3Servus testamento ita manumissus est: ‘Stichus servus meus actor si rationem omnem actus sui heredi meo reddiderit eoque nomine satisfecerit, liber esto eique, cum liber erit, dari volo viginti et peculium suum’. quaesitum est, an, si rationes, quas egit per multos annos sine subscriptione testatoris, heredi reddere paratus sit, liber ex testamento fiat, cum propter gravem valetudinem testator non potuerit rationibus subscribere, testamento tamen subscripserit. respondit, si ex fide ratio redderetur reliquaque inferantur, liberum fore. 4Item quaero, an ea, quae exacta sunt per adiutores eius neque kalendario illata sunt aut fraudulenter acta, huic adscribi possint, cum esset is praepositus. respondit, si id esset, quod culpae eius deberet imputari, spectare ad rationis reddendae necessitatem. 5Item quaero, an eorum quoque nomine ratio haberi debeat, quod neque a conductoribus praediorum neque a vilicis pensiones exegerit et insuper etiam promutuum eis dederit. respondit supra responsum est. 6Item quaero, an eo nomine teneatur, quod omnem rem suam, id est peculium, exportaverit, antequam rationes redderet. respondit nihil eam rem impedire condicionem, si modo ratio redderetur. 7Titius testamento servos actores singulos diversis personis legavit cum adiectione ‘si rationes heredi reddiderint’: deinde proprio capite ita scripsit: ‘omnes actores, quos legavi vel manumisero, intra quartum mensem mortis meae rationes reddere volo et dominis, quibus a me legati sint, reddi’. infra deinde alios actores liberos esse iussit aeque cum hac adiectione ‘si rationes heredi reddiderint’. quaero, cum per heredem fiat, quo minus reddantur, utrum statuliberi esse desinant an nihilo minus quandoque possint reddita ratione et reliquis illatis libertatem ex testamento consequi. respondit legata quidem et libertates non alias competere, quam rationes redditae essent aut per heredem staret, quo minus redderentur: verum iudicaturo aestimandum, utrum tempus condicioni legatorum libertatiumque additum videatur an, libero tempore reddere volentibus reliqua, heredibus quattuor menses appositi sint, sollicito testatore cunctationi et moram eorum proscribente. melius autem est praesumptionem pro statuliberis esse. 8Argentarius coactor cum paene totam fortunam in nominibus haberet, servis actoribus libertatem ita dedit: ‘quisquis mihi heres erit, si Dama servus meus actus sui, qui agitur nomine eius et Pamphili conservi sui, heredi meo rationes reddiderit pariaque fecerit a die mortis meae intra mensem sextum, liber esto’. quaesitum est, an haec verba ‘pariaque fecit’ ad omnia nomina pertineant exceptis perditis, ut hoc significent ‘si omnem pecuniam ab omnibus exegerint et heredi solverint vel eo nomine satisfecerint’ et, si in exactione nominum cessaverint intra sex menses, libertas illis non competat. respondit manifestam esse condicionem verbis testamenti supra scriptis positam: igitur ita demum liberos fore, si aut ei pareant aut per heredem stet, quo minus pareant.
40 Scævola, Digest, Book XXIV. Freedom was granted to Stichus as follows, “I request my heirs, and I charge them to manumit Stichus, after he renders his accounts.” As the slave had collected a great deal of money after the death of the testator, which remained in his hands, and had not included in his own accounts certain sums paid by tenants; and had despoiled the estate by secretly opening warehouses and stealing furniture and clothing, and exhausting cellars of their contents, the question arose whether freedom under the trust should be granted him before he accounted for what fraudulently remained in his hands, and returned what he had stolen. The answer was that freedom should not be granted him under the terms of the trust until he had made restitution of the balance remaining in his hands, and everything which had been lost by his agency. 1“Let Pamphilus be free, if he gives all of his peculium to my heirs.” As the slave owed more to his master than there was in the peculium, and had transferred everything belonging to his peculium in good faith to the heirs, the question arose whether he was entitled to freedom under the terms of the will. The answer was that there was nothing in the case stated to show that he was not entitled to it. 2A testator bequeathed his slave Stichus as a preferred legacy to his freedman, Pamphilus, whom he had appointed heir to a portion of his estate; and he bequeathed freedom to Stichus, as follows: “You will manumit him if, during the five continuous years from the day of my death, he pays you sixty sesterces every month.” Pamphilus, having died before the expiration of five years, and having appointed his son and his wife his heirs, made the following testamentary provision with reference to Stichus: “I direct that my slave, Stichus, who was bequeathed to me under a certain condition by the will of my patron, shall give and pay to my son and to my wife, without any dispute, the amount for which he is liable, and if this is done, they shall manumit him after the prescribed time has elapsed.” If Stichus should not pay the sixty sesterces every month, the question arose whether he would be entitled to his freedom under the trust, after the five years had expired. The answer was that unless he made the payments he would not be entitled to the freedom granted to him under the terms of the trust. 3A slave was manumitted by a will as follows: “Let Stichus, my slave, who is also my steward, be free, if he renders an account of his entire administration to my heir, and satisfies him in this respect; and when he becomes free, I wish twenty aurei and his peculium to be given to him.” The question arose, if the slave was prepared to render accounts of his administration for the many years during which he had conducted it without the signature of the testator approving them whether he would become free under the will, as the testator had not been able to sign the accounts because of his serious illness, but could, nevertheless, sign his will. The answer was that the slave would become free if his accounts were rendered in good faith, and the balance remaining in his hands was paid. 4I also ask whether any sums collected by the assistants of the slave, which either were not entered upon his register at all, or were entered fraudulently, will render him liable, as he was placed over his assistants. The answer was, if the matter was one for which he could be held accountable, the necessity for his rendering a statement of the same should be taken into consideration. 5I also ask if an account should be rendered of the rents which he had not collected from the lessees of land, or from tenants, over and above any sums which he may have advanced to them. The answer was that this has already been decided. 6I also ask whether he will be liable on the ground that he had removed all his property, that is to say, his peculium, before rendering his account. The answer was that this was no impediment to the performance of the condition, provided the account was rendered. 7Titius bequeathed to different persons by will each of the slaves employed by his steward, on condition that they should render their accounts to his heir. Then, in another clause of his will, he said: “I wish all the stewards whom I have bequeathed, or may manumit, to render their accounts within four months after my death, to their owners to whom they have been bequeathed by me.” He then, lower down, ordered others of his stewards to be free, adding, “If they render their accounts to my heir.” As it was the fault of the heir that their accounts were not rendered, I also ask whether the slaves ceased to be free under the condition; or whether they could, nevertheless, obtain their freedom under the will, by rendering their accounts and paying the balances remaining in their hands. The answer was that the legacies and grants of freedom would not take effect, unless the accounts were rendered, or if it was the fault of the heir that this was not done; but that it must be determined by the court whether time seemed to be included in the condition under which the legacies and the grants of freedom were to become operative; or whether the four months were added by the testator for the purpose of preventing further delay and to afford abundance of time for the rendering of the accounts to the heirs. It is, however, better to hold that the presumption is in favor of the slaves. 8The collector of a banker, almost all of whose fortune consisted of claims, gave freedom to his agents, who were his slaves, as follows: “No matter who may be my heir, if Damas, my slave, renders an account to him of the administration which he has carried on in his own name, and in that of Pamphilus, his fellow-slave, I wish both of them to be placed on an equal footing, and to become free within six months.” The question arose if the words, “to be placed on an equal footing,” applied to all the claims except the bad debts, so that the meaning of it was if they collected all that was due from all the debtors, and paid the heir, or satisfied him in some other way, and if they did not collect the claims within six months, whether they would not be entitled to their freedom. The answer was, that it was clear that the condition was inserted in the above-mentioned clause of the will, and therefore that the slaves would be free if they complied with it, or the heir was responsible for their not doing so.
41 Labeo libro primo pithanon a Paulo epitomatorum. Si quem servum tuum ad certum tempus statuliberum relinquere vis, nihil interest, utro modo caveas, ‘si servierit’ an ‘si triennio operas dederit, liber esto’. 1Paulus. Si quis liber esse iussus fuerit, si decem heredi promississet, quamquam ea promissio nullam rem habitura est, tamen promittendo liberabitur.
41 Labeo, Epitomes of Probabilities, by Paulus, Book I. If you desire to permit one of your slaves to be liberated from servitude within a certain time, it makes no difference whether you make this provision under the condition that he “shall serve,” or “render his services for the term of three years, in order to become free.” 1Paulus: If anyone is ordered to be free if he promises to pay ten aurei to the heir, although a promise of this kind will be of no effect, he will, nevertheless, be liberated by making it.
42 Labeo libro tertio pithanon. Si quis eundem hominem uxori suae legaverit et, cum ea nupsisset, liberum esse iusserit et ea ex lege nupserit, liber fiet is homo.
42 The Same, Probabilities, Book III. Where anyone bequeaths a slave to his wife, and orders him to be free in case she marries again, the slave will become free under this condition if she should marry a second time.