De rebus auctoritate iudicis possidendis seu vendundis
(Concerning the possession and sale of property by judicial authority.)
1 Gaius libro vicesimo tertio ad edictum provinciale. Venire bona ibi oportet, ubi quisque defendi debet, id est
1 Gaius, On the Provincial Edict, Book XXV. The property of a debtor must be sold in the place where he should defend the action; that is to say,
2 Paulus libro quinquagensimo quarto ad edictum. ubi domicilium habet,
2 Paulus, On the Edict, Book LIV. Where he has his domicile:
3 Gaius libro vicesimo tertio ad edictum provinciale. aut ubi quisque contraxerit. contractum autem non utique eo loco intellegitur, quo negotium gestum sit, sed quo solvenda est pecunia.
3 Gaius, On the Provincial Edict, Book XXIII. Or where he made the contract. The contract, however, is understood not to have been made in the place where the transaction was concluded, but where the money should be paid.
4 Paulus libro quinquagesimo septimo ad edictum. Si servus sub condicione heres institutus sit aut dubium sit, an is heres liberque futurus sit, non est iniquum postulantibus creditoribus ita decerni, ut, si ante certum tempus is heres non extiterit, perinde omnia observentur, ac si is heres ita institutus non esset: quod plerumque accideret, si sub condicione dandae alicui pecuniae heres institutus sit nec dies adpositus sit. sed hoc quantum ad bona ita observandum: ceterum libertas ei quandoque competet et a praetore conservanda est, etiamsi certum sit neque heredem neque bonorum possessorem futurum. si quis tamen heredem se spondendo vel actiones patiendo defunctum defendat, bona defuncti venire non poterunt.
4 Paulus, On the Edict, Book LVII. If a slave has been appointed heir under a condition, or if there is a doubt whether he will become free, and the heir, it is not unjust for a decree to be issued, provided the creditors request it; but if he does not become the heir before a specified time, everything shall proceed just as if he had not been appointed at all. This happens very frequently where a slave is appointed heir under the condition of paying a certain person a sum of money, and no date was fixed for doing so. This rule shall be observed with reference to the property of the estate, but as the slave will, at some time or other, obtain his freedom, the Prætor must preserve it for him, even if it is certain that he will never be the heir, or acquire prætorian possession of the estate. If, however, anyone appears to defend the deceased, either by promising that he will be the heir, or by permitting actions to be brought against him, the property of the decedent cannot be sold.
5 Ulpianus libro sexagesimo ad edictum. Si minor viginti quinque annis, qui habet curatores, a curatoribus non defendatur nec alium defensorem inveniat, bonorum venditionem patitur, etsi non latitet, licet non fraudationis causa latitare videtur, qui sui non est idoneus defensor.
5 Ulpianus, On the Edict, Book LX. A minor of twenty-five years of age, who has curators, but is not defended by them, and can find no one else to appear for him, must suffer the sale of his property, even if he does not conceal himself; although he who is not capable of protecting his own interests is not considered to have fraudulently hidden himself.
6 Paulus libro quinquagesimo octavo ad edictum. Si non expedierit pupillo hereditatem parentis retinere, praetor bona defuncti venire permittit, ut quod superaverit pupillo restituatur. 1Si pupillus, antequam abstineret, aliquid gesserit, servandum est, utique si bona fide gessit. 2Quid ergo, si quibusdam creditoribus solvit, deinde bona venierint? si quaeritur, an repetitio sit, ex causa id statuendum Iulianus ait, ne alterius aut neglegentia aut cupiditas huic, qui diligens fuit, noceat. quod si utroque instante tibi gratificatus tutor solvit, aequum esse aut prius eandem portionem mihi quaeri aut communicandum quod accepisti: et hoc Iulianus ait. apparet autem loqui eum, si ex bonis paternis solutum sit. quid ergo, si aliunde pupillus solverit? reddi ei debebit nec ne? et utrum a creditore an ex hereditate? Scaevola noster ait, si aliquid sit in bonis, deducendum ex hereditate solidum exemplo eius, qui gessit negotia: sed si nihil sit in bonis, non esse iniquum adversus creditorem dandam repetitionem quasi indebiti soluti.
6 Paulus, On the Edict, Book LVIII. If it is not advisable for a minor to keep the estate of his father, the Prætor will permit the property of the deceased to be sold, in order that anything which remains may be delivered to the minor. 1If the minor, before he rejects the estate, should transact any business relating to it, what he did should be considered valid, provided he.acted in good faith. 2But what if, after having paid some of his creditors, his property should afterwards be sold by others? If inquiry is made as to whether there can be any recovery, Julianus says that, if proper cause is shown, the matter should be decided in such a way as to prevent the rights of a diligent creditor from being prejudiced by either the negligence or cupidity of another. But if both creditors pressed their claims for payment at the same time, and the guardian only paid you, it is but just that I should either obtain as much, or that you should contribute out of what you had received. This is what Julianus says. It is evident, however, that he refers to the case of a ward, where payment was made out of the property of the estate of his father. What course then should be pursued, if the ward had obtained the money for payment from some other source? Would he be required to return it or not? And should it be refunded by the creditor, or taken from the estate? Our Scævola says that if there is anything in the estate, it should be entirely deducted; just as in the case of a person who transacts the business of another. If, however, nothing remains in the estate, it would not be inequitable to grant an action for recovery against the creditor, for money which was paid without being due.
7 Gaius libro vicesimo tertio ad edictum provinciale. Hereditarium aes alienum intellegitur etiam id, de quo cum defuncto agi non potuit, veluti quod is cum moreretur daturum se promisisset, item quod is, qui pro defuncto fideiussit, post mortem eius solvit.
7 Gaius, On the Provincial Edict, Book XXIII. The indebtedness of an estate is also understood to be that for which suit can not be brought against the deceased, as, for instance, where he promised to pay at the time of his death; as well as where someone who had become surety for the deceased paid the debt after he died.
8 Ulpianus libro sexagensimo primo ad edictum. In venditionem bonorum etiam usus fructus venit, quia appellatione domini fructuarius quoque continetur. 1Si quis fructus ex praedio debitoris capi poterit, hunc creditor, qui in possessionem praedii missus est, vendere vel locare debet: sed hoc ita demum, si ante neque venierit neque locatus erit. nam si iam a debitore vel locatus erat vel venierat, servabit praetor venditionem et locationem a debitore factam, etsi minoris distractum est vel locatum, nisi si in fraudem creditorum hoc fiat: tunc enim praetor arbitrium dat creditoribus, ut ex integro locationem vel venditionem faciant. 2De ceterarum quoque rerum fructibus idem erit dicendum, ut, si qui locari possint, locentur, puta mercedes servorum vel iumentorum ceterorumque, quae possunt locari. 3De tempore locationis nihil praetor locutus est et ideo liberum arbitrium creditoribus datum videtur, quanto tempore locent, quemadmodum illud est in arbitrio eorum, vendant vel locent, scilicet sine dolo malo: ex culpa autem rei non fiunt. 4Si unus sit, qui possideat bona, expeditum erit de locatione: quod si non unus, sed plures sint, quis eorum debeat locare vel vendere, quaeritur. et si quidem convenit inter eos, expeditissimum est: nam et omnes possunt locare et uni hoc negotium dare: si vero non convenit, tunc dicendum est praetorem causa cognita eligere debere, qui locet vel vendat.
8 Ulpianus, On the Edict, Book LXI. The usufruct of property is also included in the sale, because an usufructuary is embraced in the term “owner.” 1If anyone has a right to take the crops from the land of his debtor, a creditor, who has been placed in possession of the land, can either sell or lease the said crops. This, however, can only be done where they have not been sold or leased beforehand; for if the debtor did this, the Prætor will sustain the sale or the lease made by him, even though the crops may have been disposed of for less than they were worth; unless this was done for the purpose of defrauding the creditors, for then the Prætor can authorize the creditors to make a new lease or sale. 2The same rule will apply to the income from other things, so that if they can be leased, this should be done; as for example, the wages of slaves, or the hire of beasts of burden, qr the revenue from other property which can be rented. 3The Prætor does not say anything about the time that the lease is to run. Therefore, free power is held to have been granted to creditors to lease the property as long as they may deem it advisable; just as they have the right to sell or lease according to their judgment, of course, where no fraud exists. They, however, are not responsible for negligence. 4If one of the creditors is in possession of the property, the question of leasing it will be easily disposed of. But where there is not only one, but several creditors, it may be asked which of them should sell or lease the property? This will be readily decided if they are agreed, for all of them can lease it, or appoint one of their number to do so. If, however, they do not agree, then it must be said that the Prætor after proper cause is shown must select one of them to lease or sell it.
9 Idem libro sexagensimo secundo ad edictum. Praetor ait: ‘Si quis, cum in possessione bonorum esset, quod eo nomine fructus ceperit, ei, ad quem ea res pertinet, non restituat: sive, quod impensae sine dolo malo fecerit, ei non praestabitur: sive dolo malo eius deterior causa possessionis facta esse dicetur, de ea re iudicium in factum dabo’. 1Quod de fructibus ait, etiam de ceteris, quaecumque ex re debitoris pervenerunt, intellegendum est. et sane debuit hoc ita esse: quid enim, si ex compromisso vel alio casu poenam consecutus est? nam eam poenam, quam consecutus est, praestare debet. 2Quod ait praetor ‘sive quod impensae nomine sine dolo fecit, ei non praestabitur’, hoc eo spectat, ut, si quid ipse erogavit creditor, si modo sine dolo malo erogavit, hoc ei praestetur: sufficit igitur sine dolo erogasse, etiamsi nihil profuit erogatio eius rei debitori. 3His verbis ‘ad quem ea res pertinet’ etiam curator bonis distrahendis datus continebitur et ipse debitor, si contigerit, ne bona eius veneant. et ipsi itaque creditori adversus hos dabitur actio, quos enumeravimus, sive quid in fructibus percipiendis erogavit sive in familia alenda curandave praediis fulciendis vel reficiendis vel damno infecto promittendo vel servo noxali iudicio defenso, si modo non magis eum expedit dedere quam retinere: quod si dedere expedit, consequens erit repetere eum non debere. 4Generaliter etiam dicendum est, quidquid impendit in rem, si modo sine dolo malo impendit, repetere eum posse: nam negotiorum gestorum agere non magis potest quam si socius commune aedificium fulsit, quia hic quoque creditor commune, non alienum negotium gessisse videtur. 5Est praeterea quaesitum, si deteriora praedia facta fuerint sine dolo malo creditoris vel iura eorum amissa vel aedificia diruta vel exusta, item familiae pecorumque acta cura non sit aut possessio alii tradita, sine dolo tamen malo, an teneatur. et apparet eum non teneri, quia dolo malo caret, eritque melior eius condicio quam in pignore creditoris, qui non tantum dolum malum, verum culpam quoque debet. eadem causa est curatoris bonorum: nam et is tenetur ut creditores. 6In eum quoque, qui neque locavit fructum praedii neque vendidit, in factum actionem dat praetor et in hoc condemnabitur, quanto minus propter hoc perceptum est, quia neque vendidit neque locavit. ceterum si tantum perceptum est, quantum perciperetur, si locatus vel distractus fructus esset, nihil ei imputabitur. praestat autem per id tantum temporis, quo in possessionem fuit vel ipse vel iussu eius alius, quoad inde de possessione discessum est: nam neque hoc imputatur creditori, cur in possessionem non venerit, neque illud, cur de possessione decesserit, cum voluntarium et suum potius negotium creditor gerat. aestimatio autem fit, quantum interest eius qui experitur. 7Hae actiones neque temporariae sunt et tam heredibus quam in heredes dabuntur ceterosque successores. 8Si possessionis causa deterior facta esse dicetur dolo eius, qui in possessionem missus sit, actio in eum ex dolo datur, quae neque post annum neque in heredes ceterosque successores dabitur, cum ex delicto oriatur poenaeque nomine concipiatur,
9 The Same, On the Edict, Book LXII. The Prætor says: “I will grant an action in factum, where anyone is in possession of property, and for this reason has gathered the crops, and refuses to return them to the person to whom the property belongs, or is unwilling to refund to him any expenses which he may have incurred without fraud, or where the condition of the property has become worse through the fraudulent acts of the possessor.” 1What the Prætor says with reference to the income must also be understood to refer to everything else which is obtained from the property of the debtor. And, indeed, this ought to be the case, for what would happen if the party in possession should obtain a penalty either through a submission to arbitration, or in some other way? He would be obliged to refund the penalty which he had obtained. 2When the Prætor says, “If he is unwilling to refund to him any expenses which he may have incurred without fraud,” this means that, if the creditor himself has incurred any expenses, he should be reimbursed for them, provided he did not incur them fraudulently. Hence, it is sufficient for the expenses to have been incurred without fraud, even if their payment did not, in any way, benefit the property of the debtor. 3In the words, “To the person to whom the property belongs,” the curator appointed for the sale of the property and the debtor himself are included, if the sale should not take place. An action is also granted to the creditor against the parties whom we have mentioned, if he incurred any expense in gathering the crops, or in supporting and caring for the slaves, or in keeping up and repairing the land, or in indemnifying a neighbor for threatened injury, or in defending a slave in a noxal action, provided it was not more advantageous to surrender the slave than to keep him. For if it is better to surrender him, the result will be that he cannot recover the expense of defending him. 4Generally speaking, it must be said that the party in possession can recover anything which he has expended upon the property, provided this was not done fraudulently. For he can no more bring the action based on voluntary agency than if, as a joint-owner, he had repaired a building held in common, because the creditor also is considered to have transacted the business in which he himself was jointly interested, and not that of another. 5Moreover, the question has been asked if, where lands have deteriorated without any bad faith on the part of the creditor; or rights attaching to them have been lost; or buildings have been demolished, or burned; or proper care has not been taken of the slaves or cattle; or possession delivered to another without fraudulent intent; whether the possessor will be liable. It is evident that he will not be liable, because he is not guilty of fraud. His position will be better than that of a creditor when a pledge is concerned, for he is responsible not only for fraud, but also for negligence. The same rule applies to the curator of property, for he also is liable as creditors are. 6The Prætor also grants an action in factum against him who neither leased nor sold the crops on the land, and judgment will be rendered against him for what he has collected, because he neither sold nor leased it. If, however, he has only collected as npteh as he would have done if the crop had been leased, or sold, he will not be liable for anything. He must, however, be responsible for the time In which either he himself, or someone else by his direction was in possession, until he relinquished it. For the creditor should not be considered responsible for not taking possession, or for relinquishing it, as he transacts the business voluntarily as his own. The appraisement should be made in proportion to the interest of the party who brings suit. 7These actions are not temporary ones, and they are granted for and against heirs and other successors. 8If the condition of the property is said to have become deteriorated through the fraud of the party placed in possession, an action on the ground of bad faith should be granted against him; but this will not be granted either against the heirs or other successors, after the expiration of a year, because it is derived from a criminal offence and involves a penalty:
10 Paulus libro quinquagensimo nono ad edictum. nisi quatenus ad eum pervenit.
10 Paulus, On the Edict, Book LIX. Unless it is brought for the amount which came into his hands.
11 Ulpianus libro sexagesimo secundo ad edictum. Heredi autem dabitur, quia et rei continet persecutionem.
11 Ulpianus, On the Edict, Book LXII. This action is also granted to the heir, because it includes the pursuit of the property.
12 Paulus libro quinquagesimo nono ad edictum. Cum unus ex creditoribus postulat in bona debitoris se mitti, quaeritur, utrum solus is qui petit possidere potest, an, cum unus petit et praetor permisit, omnibus creditoribus aditus sit. et commodius dicitur, cum praetor permiserit, non tam personae solius petentis, quam creditoribus et in rem permissum videri: quod et Labeo putat. nec videbitur libera persona adquirere alii, quia nec sibi quicquam adquirit, cui praetor permittit, sed aliquid ex ordine facit: et ideo ceteris quoque prodest. plane si is postulaverit, qui creditor non est, minime dicendum est vel eum, qui creditor est, possidere posse, quia nihil egit talis postulatio: aliter atque si creditor, cui permissum est possidere, postea recepit debitum suum: ceteri enim poterunt peragere bonorum venditionem. 1Is, qui possidere iubetur, eo loco iussus videtur, cuius cura ad iubentem pertinet. 2Si propter naturam rei (veluti si praedium inundatum sit) aut propter latronum potentiam non potest possidere, recte dicitur non esse quod possideatur.
12 Paulus, On the Edict, Book LIX. When one of several creditors asks to be placed in possession of the property of a debtor, the question arises whether he alone who makes the request, can take possession. Or whether, where only one makes the request, and the Prætor grants it, all the creditors will be permitted to enter upon the property. It is more convenient to hold that when the Prætor places a party in possession he is considered to have granted permission not only to him who makes the request, but to all the creditors as well. This opinion is also held by Labeo. In this case, it is not considered that possession is acquired by a free person, because he whom the Prætor permits to take possession does not acquire anything for himself, but performs an act which is customary and therefore the others profit by it. It is clear that if anyone who is not a creditor should ask for. possession, it can, by no means, be held that a creditor can acquire possession, because a demand of this kind is of no effect. It is otherwise, however, if a creditor, to whom permission has been given to take possession, afterwards receives payment of his debt, for the other creditors can follow up the sale of the property. 1He who is ordered to take possession is understood to be directed to do so in some place which is subject to the jurisdiction of the court. 2If possession cannot be taken on account of the nature of the property, or because land has been inundated, or is in the power of robbers, it is very properly held that there is nothing of which to take possession.
13 Gaius libro vicesimo tertio ad edictum provinciale. Quamvis possessa non sint bona, quia forte nihil fuerit, quod possideatur, aut sine controversia non possideatur creditor qui in possessionem missus est, perinde habetur, ac si etiam possessa bona fuissent.
13 Gaius, On the Provincial Edict, Book XXIII. Although there may not be actual possession of the property, for the reason that there is nothing of which possession can be obtained, or because it cannot be acquired without a controversy, the creditor who has been placed in possession will be considered to be in the same position as if it had been obtained by him.
14 Paulus libro quinquagensimo nono ad edictum. Creditore in possessionem rerum debitoris misso curator constitui debet, si quaedam actiones periturae sunt. 1Datur in creditorem actio, qui in possessionem missus est, de eo quod ex bonis debitoris ad eum pervenit: si nondum sit aliquid consecutus, actiones suas praestabit. datur autem in factum actio adversus eum et omne, quod in actionem negotiorum gestorum veniret, si posset agi, restituendum a creditore.
14 Paulus, On the Edict, Book LIX. Where a creditor is placed in possession of the property of a debtor, a curator should be appointed, if there is any danger of rights of action being extinguished. 1An action is granted against a creditor who has been placed in possession, with reference to any property of the debtor which may have come into his hands. If he has not yet obtained anything, he must assign his rights of action. An action in factum will be granted against him, and everything included in one for voluntary agency must be surrendered by the creditor, if this action can be brought under the circumstances.
15 Ulpianus libro sexagesimo secundo ad edictum. Cum plures creditores in possessionem rerum debitoris mittantur, ne corrumpantur rationes, uni hoc negotium a creditoribus esse dandum, quem maior pars creditorum elegerit. ego puto creditoribus instrumentorum etiam ἀναγραφὴν facere, non ut describant ipsa corpora instrumentorum, sed quot sint, de qua re sint, subnotent sibi et quasi inventarium faciant: quod etiam universorum facere eis erit permittendum. praeterea nonnumquam praetor causa cognita etiam describere aliquid ex instrumentis creditoribus debebit permittere, si qua idonea causa interveniat. 1Utrum semel an etiam saepius recognitio et dispunctio concedenda sit creditoribus, videamus. et ait Labeo amplius quam semel non esse concedendam: si quis tamen, inquit, iuraverit non calumniae causa se postulare neque habere quae dispunxerit, iterum ei faciendam potestatem ait nec amplius quam bis.
15 Ulpianus, On the Edict, Book LXII. When several creditors are placed in possession of the property of a debtor, one of their number should be selected by the majority to see that his accounts are not tampered with. I think that a list of the documents in the hands of the debtor should be made by the creditors; not that they ought to copy the documents themselves, but that they should take notes for their own benefit, and, make, as it were, an inventory, showing the number of the said documents, and to what matters they relate; a course of proceeding which they should be allowed to follow with reference to all other property. Moreover, the Prætor should sometimes, where proper cause is shown, permit the creditors to make extracts.from the said documents, if any good reason exists for doing so. 1Let us see whether the creditors should be permitted to review and examine the papers of the debtor only once, or several times. Labeo says that this privilege should not be granted more than once. He, however, holds that if anyone swears that he is not requesting this for the purpose of annoyance, and that he no longer has the extracts which he tabulated, he should be granted the power to make a second examination, but that this should not be done more than twice.
16 Gaius libro vicesimo quarto ad edictum provinciale. Cum bona veneunt debitoris, in comparatione extranei et eius, qui creditor cognatusve sit, potior habetur creditor cognatusve, magis tamen creditor quam cognatus, et inter creditores potior is, cui maior pecunia debebitur.
16 Gaius, On the Provincial Edict, Book XXIV. When the property of a debtor is sold, a creditor who is a blood-relative is preferred to a stranger. Where there are several creditors, and all of them are not relations of the debtor, he to whom the largest sum of money is due shall be preferred.
17 Ulpianus libro sexagesimo tertio ad edictum. Quaesitum est, utrum ita demum privilegium habet funeraria, si is cuius bona veneunt funeratus sit, an etiam si proponas alium esse funeratum. et hoc iure utimur, ut quicumque sit funeratus, id est sive is, cuius de bonis agitur, sive quid is debuit, quod reddere eum, si viveret, funeraria actione cogi oporteret, privilegio locus sit parvique referre dicamus, qua actione hic sumptus repetatur, funeraria an familiae erciscundae an qua alia, dummodo sumptus funeris causa factus sit. quacumque igitur actione ob funeris sumptum utatur, etiam funerariam ei competere. quare si in stipulatum funeris inpensa deducta est, dicendum est locum esse privilegio, si modo quis non abiciendi privilegii causa stipulatus est. 1Si sponsa dedit dotem et nuptiis renuntiatum est, tametsi ipsa dotem condicit, tamen aequum est hanc ad privilegium admitti, licet nullum matrimonium contractum est: idem puto dicendum etiam, si minor duodecim annis in domum quasi uxor deducta sit, licet nondum uxor sit:
17 Ulpianus, On the Edict, Book LXIII. The question arose whether the funeral expenses were only privileged, where the person whose property was sold was buried, or whether this was also the case where they were incurred for the interment of another. The present rule is that there will be ground for the privilege when anyone is buried (that is to say where it is necessary for an action for the funeral expenses to be brought, whether this is done for one whose property is about to be sold, or for someone who was indebted to another, and against whom such an action could have been brought, if he had lived). We hold that it makes very little difference by what kind of a proceeding expense of this kind is recovered, whether it be one to collect funeral expenses, or a suit in partition, or any other, provided that the expenses were actually incurred on account of the burial. Therefore, no matter what action is brought for this purpose, the party will also be entitled to one based on funeral expenses. Hence, if, by reason of a stipulation, the expenses of the funeral were deducted, it must be said that there is ground for the privilege, provided no one entered into the stipulation for the purpose of renouncing the privilege. 1If a betrothed woman gives a dowry, and the marriage does not take place, although she can recover her dowry by an action, still it is only just that she should be allowed to enjoy this privilege, even though the marriage was not solemnized. I think that the same rule will apply even if a minor under the age of twelve years is married, although she cannot yet be considered a wife.
18 Paulus libro sexagesimo ad edictum. (interest enim rei publicae et hanc solidum consequi, ut aetate permittente nubere possit)
18 Paulus, On the Edict, Book LX. It is to the interest of the public for her to recover her entire dowry, in order that she may be able to marry when her age permits her to do so.
19 Ulpianus libro sexagesimo tertio ad edictum. dabimusque ex his causis ipsi mulieri privilegium. 1Si quis, cum tutor non esset, pro tutore negotia gessit, privilegio locum esse manifestum est: nec interest, ipse debeat qui gessit sive heres eius ceterique successores. ipse autem pupillus habet privilegium, sed eius successores non habent. sed aequissimum erit ceteros quoque, quibus curatores quasi debilibus vel prodigis dantur,
19 Ulpianus, On the Edict, Book LXXI. In cases of this kind we also grant the privilege to the woman. 1If any person, at a time when he was not a guardian, transacts business as one, it is clear that there will be ground for the privilege. Nor does it make any difference whether he who transacts the business owes anything himself, or whether his heirs or other successors are debtors. Moreover, the ward himself is entitled to the privilege, but his heirs are not. It is, however, perfectly just that others to whom curators are given, as, for instance, those who are under age, or are spendthrifts,
20 Paulus libro sexagesimo ad edictum. vel surdo muto,
20 Paulus, On the Edict, Book XC. Or who are deaf or dumb,
21 Gaius libro vicensimo quarto ad edictum provinciale. vel fatuo
21 Gaius, On the Provincial Edict, Book XIV. Or idiotic,
22 Ulpianus libro sexagesimo tertio ad edictum. idem privilegium competere. 1Sed si bonis curator datus sit vel absentis vel ab hostibus capti vel dum deliberant scripti heredes de adeunda hereditate, non oportebit privilegium dari: non enim in eadem causa est.
22 Ulpianus, On the Edict, Book LV. Should enjoy the same privilege. 1Where, however, a curator is appointed for the property of a person who is absent, or has been captured by the enemy, or while the appointed heirs are deliberating as to the acceptance of the estate, it is not necessary for the privilege to be granted, for the same reason does not exist.
23 Paulus libro sexagesimo ad edictum. Si negotium impuberis aliquis ex officio amicitiae gesserit, debet bonis eius venditis privilegium pupillo conservari: et ita accepi.
23 Paulus, On the Edict, Book LX. Where anyone, through motives of friendship, transacts the business of a minor under the age of puberty, he must preserve for him the privilege to which he is entitled, when his property is sold. This opinion I have accepted.
24 Ulpianus libro sexagesimo tertio ad edictum. Si ventri curator datus sit nec partus editus, privilegium cessabit. 1Divus Marcus ita edixit: ‘Creditor, qui ob restitutionem aedificiorum crediderit, in pecunia, quae credita erit, privilegium exigendi habebit’. quod ad eum quoque pertinet, qui redemptori domino mandante pecuniam subministravit. 2In bonis mensularii vendundis post privilegia potiorem eorum causam esse placuit, qui pecunias apud mensam fidem publicam secuti deposuerunt. sed enim qui depositis nummis usuras a mensulariis acceperunt a ceteris creditoribus non separantur, et merito: aliud est enim credere, aliud deponere. si tamen nummi exstent, vindicari eos posse puto a depositariis et futurum eum qui vindicat ante privilegia. 3Eorum ratio prior est creditorum, quorum pecunia ad creditores privilegiarios pervenit. pervenisse autem quemadmodum accipimus, utrum si statim profecta est ab inferioribus ad privilegiarios an vero et si per debitoris personam, hoc est si ante ei numerata sit et sic debitoris facta creditori privilegiario numerata est? quod quidem potest benigne dici, si modo non post aliquod intervallum id factum sit.
24 Ulpianus, On the Edict, Book LXIII. When a curator is appointed for an unborn child, and the child has not yet been brought forth, the privilege will not take effect. 1The Divine Marcus issued an Edict as follows, “If a creditor should lend money for the repair of buildings, will he be preferred to other creditors to the extent of his loan?” This only applies to him who, by the direction of the owner of the property, furnished the money to the person who made the repairs. 2In selling the property of a banker, it has been established that those will come after the preferred creditors who, in accordance with the public faith, have deposited their money in the bank. Those, however, who have received interest on their deposits from the banker, will not be distinguished from the ordinary creditors; and this is reasonable, for it is one thing to lend money, and another to deposit it. If, however, the money is still in existence, I think that it can be recovered by those who have deposited it, and that he who claims it will be preferred to the privileged creditors. 3Those creditors are given the preference whose money has come into the hands of the privileged creditors. But how shall we understand this to have been done? Is it as if the money immediately passed from the other creditors to those who are privileged, or shall we hold that it passed through the person of the debtor, that is to say, that it was paid to a privileged creditor before it was counted, and thus became the property of the debtor? Without being too exacting, this can be held to be the rule, provided payment was not made after a long interval.
25 Idem libro sexagesimo quarto ad edictum. Ait praetor: ‘Quod postea contractum erit, quam is, cuius bona venierint, consilium receperit fraudare, sciente eo qui contraxerit, ne actio eo nomine detur’.
25 The Same, On the Edict, Book LXXV. The Prætor says: “Any contract which is made after the party whose property is sold has made up his mind to commit fraud, if he who made the contract is aware of this, will not admit of an action being granted on this ground.”
26 Paulus libro sexto decimo brevis edicti. Qui in navem exstruendam vel instruendam credidit vel etiam emendam, privilegium habet.
26 Paulus, On the Short Edict, Book XVI. Anyone who has lent money for the purpose of building, equipping, or even purchasing a ship, is entitled to this privilege.
27 Ulpianus libro primo de officio consulis. Si magistratus fideicommissi servandi causa in possessionem miserint, dare arbitrum possunt ad ea distrahenda, quae mora deteriora futura sunt, ita ut pretium ex his redactum apud fideicommissarium in causa depositi sit, donec de fideicommisso quod ei debetur constet.
27 Ulpianus, On the Duties of Consul, Book I. If magistrates have placed anyone in possession for the purpose of executing a trust, they can appoint an arbiter for the purpose of selling any property which will become deteriorated by delay; in order that the price obtained for said property may be left in the hands of the beneficiary, by way of deposit, until it is ascertained what is due to him under the terms of the trust.
28 Iavolenus libro primo epistularum. Pater familias impuberi filio, si ante pubertatem decessisset, substituit heredem: is filius paterna hereditate se abstinuit ideoque bona patris venierunt: postea filio hereditas obvenit, qua adita decessit. quaero, cum praetor in ipsum pupillum, quamvis postea hereditas obvenisset, creditoribus tamen patris actionem non daret, an in substitutum creditoribus patris danda sit actio, cum ex bonis paternis, quae scilicet ad creditores missos in bona pertinent, nihil adquirat et cum creditores nihil iuris in bonis pupilli habuerint eorumque nihil interfuerit, adiretur necne pupilli hereditas, cum ea bona omissa a substituto hereditate ad creditores non pertinebant. me illud maxime movet, quod praeceptoribus tuis placet unum esse testamentum. respondit: quod praetor filio, qui a paterna hereditate se abstinet, praestat, ne bonis patris eius venditis in eum actio detur, tametsi postea ei hereditas obvenit, creditoribus non reddat, idem in substituto filio herede servandum non est, quoniam filii pudori parcitur, ut potius patris quam eius bona veneant, itaque in id, quod postea ei obvenit, actio creditoribus denegatur, quia id ex adventicio adquisitum est, non per patrem ad eum pervenit. at cum substitutus filio hereditatem adiit, postquam pupillus se paternae miscuerit hereditati, tunc hereditas et patris et filii una est et in omni aere alieno, quod aut patris aut filii fuerit, etiam invitus heres obligatur: et quemadmodum liberum ei non est obligationem, ut non omnimodo, si non defenditur, ipsius bona veneant, ita ne separare quidem aes alienum patris et filii poterit: quo casu efficietur, ut creditoribus in eum actio dari debeat. quod si substitutus heres hereditatem non adierit, creditoribus patris in id, quod pupillus reliquit, actio dari non debet, quoniam neque pupilli bona venire debent propter aes alienum patris neque in bonis patris est quod pupillus adquisiit.
28 Javolenus, Epistles, Book I. The head of a household substituted an heir for his son, who was under the age of puberty, in case the latter should die before reaching that age. The son rejected the estate of his father, and therefore the property of the deceased was sold by the creditors. An estate subsequently came to the son, who died after having accepted it. I ask whether the Prætor should not grant an action to the creditors of the father against the said minor, although he obtained the estate afterwards, or should an action be granted to the creditors of the father against the substitute, who obtained nothing from the father’s estate which, of course, went into the hands of the creditors, and as the latter had no right to the property of the minor, it was no concern of the heirs whether his estate was entered upon or not, as the property found by the substitute in the estate of the son did not belong to his father’s creditors. This opinion perplexes me exceedingly, because it was decided by your preceptors that there was only one will. The answer was that the Prætor benefited the son, who did not accept the estate of his father, by not allowing an action to be granted against him, after the sale of his father’s property (although he subsequently obtained an estate), to compel him to pay the creditors; but the same rule should not be observed with reference to the heir who was substituted for the son, as allowance was made for the honor of the latter, by causing the property of his father to be sold, rather than his own. Therefore an action will be refused the creditors, as far as the property Which was afterwards acquired by the son is concerned, for the reason that it came to him from another than his father. But if the substitute for the son had entered upon the father’s estate, after the minor had taken some action with reference to it, then the estates of the father and the son became identical, and the heir, even if unwilling, would be liable for all debts incurred by either the father or the son; and, as, after an obligation had been contracted, he could, by no means, prevent his own property from being sold, if no defence was made; so in like manner, the indebtedness of the father and the son could not be separated, in which case the result would be that an action must be granted to the creditors against him. If, however, the substituted heir should not enter upon the estate, an action ought not to be granted to the creditors of the father with reference to the estate left by the minor, as neither the property of the latter should be sold to discharge the debts of the father, nor should the estate which the minor acquired be included in that of his father.
29 Paulus libro quinto ad legem Iuliam et Papiam. Fufidius refert statuas in publico positas bonis distractis eius, cuius in honorem positae sunt, non esse emptoris bonorum eius, sed aut publicas, si ornandi municipii causa positae sint, aut eius, cuius in honorem positae sint: et nullo modo eas detrahi posse.
29 Paulus, On the Lex Julia, et Papia, Book V. Aufidius says that statues erected in public places for the purpose of honoring anyone whose property has been sold by his creditors cannot be acquired by a purchaser, but are public, whether they have been donated for the purpose of ornamenting the city, or remain the property of him in whose honor they have been raised, and that, under no circumstances, can they be removed.
30 Papirius Iustus libro primo de constitutionibus. Imperatores Antoninus et Verus Augusti rescripserunt eos, qui bona sua negant iure venisse, praeiudicio experiri debere et frustra principem desiderare rescindi venditionem.
30 Papirius Justus, On the Constitutions, Book I. The Emperors Antoninus and Verus stated in a Rescript that those who deny that their property has been legally sold should bring an action, and that they will vainly apply to the Emperor to set aside the sale.
31 Ulpianus libro secundo de omnibus tribunalibus. Si creditores heredem suspectum putent, satisdationem exigere possunt pro suo debito reddendo. cuius rei gratia cognoscere praetorem oportet nec statim eum satisdationis necessitati subicere debet, nisi causa cognita constiterit prospici debere his, qui suspectum eum postulaverunt. 1Sed suspectus heres non isdem modis, quibus suspectus tutor aestimatur: siquidem tutorem non facultates, sed fraudulenta in rebus pupillaribus et callida conversatio suspectum commendet, heredem vero solae facultates. 2Plane in recenti aditae hereditatis audiendi erunt, qui suspectum postulant: ceterum si probentur passi eum in hereditate morari nec quicquam possint obicere criminis quasi dolose versato eo, non debebit post multum temporis ad hanc necessitatem compelli. 3Quod si suspectus satisdare iussus decreto praetoris non obtemperaverit, tunc bona hereditatis possideri venumque dari ex edicto suo permittere iubebit. 4Plane si doceatur nihil ex bonis alienasse nec sit quod ei iuste praeter paupertatem obiciatur, contentus esse praetor debet, ut iubeat eum nihil minuere. 5Quod si nec inopia laborantem eum creditores ostendere potuerint, iniuriarum actione ei tenebuntur.
31 Ulpianus, On All Tribunals, Book II. If the creditors of an estate consider the heir to be suspicious, they can require him to give security for the payment of what is due to them, and the Prætor should take cognizance of the case. He ought not, however, without proper examination, to subject the heir to the necessity of furnishing security, unless after proper cause has been shown, he should decide to protect the interests of those who consider the heir as liable to suspicion. 1An heir is not considered suspicious in the same sense that a guardian is; for fraudulent acts or deceitful conduct with reference to the affairs of his ward render a guardian liable to suspicion, and not his want of means, while the latter alone will render an heir suspicious. 2It is clear that those who accuse an heir of being suspicious should only be heard within a short time after his acceptance of the estate. If, however, it is proved that they suffered him to remain in possession of the estate for a considerable period, and can accuse him of nothing criminal, as, for example, that he has been guilty of some fraudulent act, he should not, after a long time has elapsed, be reduced to the necessity of giving security. 3If the heir who is ordered to furnish security on the ground of being liable to suspicion does not obey the decree of the Prætor, the latter shall then order possession to be taken of the property of the estate, and permit it to be sold in conformity with the Edict. 4It is evident that if it should be ascertained that nothing belonging to the estate has been sold, and that no other objection can justly be raised against the heir except his poverty, the Prætor must be content to order him to take nothing from the estate. 5If the creditors cannot prove that the heir is suffering from poverty, they will be liable to him in an action on the ground of injury sustained.
32 Paulus libro singulari regularum. Privilegia non ex tempore aestimantur, sed ex causa, et si eiusdem tituli fuerunt, concurrunt, licet diversitates temporis in his fuerint.
32 Paulus, Opinions. The privileges of creditors are not estimated by the time, but by the nature of the debt; and if several of them hold under the same title they will share alike, although their claims may be of different dates.
33 Ulpianus libro tertio regularum. Si pupillus ex contractu suo non defendatur ideoque bona eius creditores possidere coeperint, deminutio ex his bonis fieri debet vescendi pupilli causa. 1Defendere debitorem sicut ante, quam bona eius possiderentur, licet, ita post bonorum quoque possessionem eius, sive ipse sui, sive alius defensionem eius suscipiat, debet satisdare, ut satisdatione interposita iudicium accipiatur et a possessione discedatur.
33 Ulpianus, Rules, Book III. Where a minor is sued on a contract, and offers no defence, and, fqr this reason, his creditors obtain possession of his property, an amount should be deducted from it for his maintenance. 1As it is permitted to defend a debtor before his creditors have obtained possession of his property, this can also be done after possession of it has been obtained; and, whether he himself undertakes his defence, or someone else does so for him, security must be given that the decision of the court will be complied with, and possession relinquished.
34 Marcianus libro quinto regularum. Quod quis navis fabricandae vel emendae vel armandae vel instruendae causa vel quoquo modo crediderit vel ob navem venditam petat, habet privilegium post fiscum.
34 Marcianus, Rules, Book V. Anyone is entitled to be a privileged creditor, after the Treasury, if he has lent money for the purpose of building, repairing, arming, or equipping a ship, as well as where he brings suit to collect the price of a ship which has been sold.
35 Idem libro singulari ad formulam hypothecariam. Eum, qui in possessionem missus sit eius, qui rei publicae causa afuit, si apparuerit eum dolo malo rei publicae causa abesse, iure in possessione esse placet, donec solidum solvatur: eum autem, qui rerum eius, qui sine dolo malo rei publicae causa afuit, in possessionem missus sit, pignus non contrahere et ideo discedere oportere de possessione.
35 The Same, On the Hypothecary Formula. It is established that anyone placed in possession of the property of a debtor who is absent on public business can legally hold it until the debt is paid in full, if it appears that the debtor is fraudulently absent, under the pretense of attending to business for the State. Where, however, he is absent on public business, in good faith, and a creditor is placed in possession under a writ of execution, the proceeding is void, and hence he must relinquish possession of the property.
36 Ulpianus libro quadragesimo quinto ad Sabinum. Eum, qui circa columnas se occultet, ut creditorem evitet, latitare placet: nam et eum, qui recedit, hoc est qui supterfugit, ne secum aliqua actio moveatur, latitare placet: tam et qui urbe profugit, utique fraudandi causa: nec enim interest, quod attinet ad latitandum, utrum quis profugerit an vero Romae agens copiam sui non facit.
36 Ulpianus, On Sabinus, Book XLV. It is settled that anyone who hides behind columns, in order to avoid his creditor, conceals himself. It is also held that he is concealing himself who goes into seclusion, that is to say, who secretes himself to avoid an action being brought against him. Such a person is he who leaves the city for the purpose of defrauding his creditors; for there is no difference, so far as concealing one’s self is concerned, whether a man leaves the city, or, remaining at Rome, does not appear in public.
37 Papinianus libro decimo responsorum. Antiochensium Coelae Syriae civitati, quod lege sua privilegium in bonis defuncti debitoris accepit, ius persequendi pignoris durare constitit.
37 Papinianus, Opinions, Book X. It has been decided that the City of Antioch, in Syria, retained the privilege conferred upon it by a special law, with reference to the pursuit of the property of a deceased debtor that had been taken in execution.
38 Paulus libro primo sententiarum. Bonis venditis excipiuntur concubina et liberi naturales. 1Res publica creditrix omnibus chirographariis creditoribus praefertur.
39 Idem libro quinto sententiarum. Pupillus si non defendatur, in possessione creditoribus constitutis minoribus, ex his usque ad pubertatem alimenta praestanda sunt. 1Eius, qui ab hostibus captus est, bona venire non possunt, quamdiu revertatur.
39 The Same, Decisions, Book V. If no defence is made for a minor, his creditors are placed in possession of his property, but provision for his maintenance until he arrives at the age of puberty should be made out of said property. 1The property of anyone who has been captured by the enemy cannot be sold for the payment of his debts until he returns.