Quae in fraudem creditorum facta sunt ut restituantur
(Concerning Restitution Where Fraudulent Acts Have Been Committed Against Creditors.)
1 Ulpianus libro sexagensimo sexto ad edictum. Ait praetor: ‘Quae fraudationis causa gesta erunt cum eo, qui fraudem non ignoraverit, de his curatori bonorum vel ei, cui de ea re actionem dare oportebit, intra annum, quo experiundi potestas fuerit, actionem dabo. idque etiam adversus ipsum, qui fraudem fecit, servabo’. 1Necessario praetor hoc edictum proposuit, quo edicto consuluit creditoribus revocando ea, quaecumque in fraudem eorum alienata sunt. 2Ait ergo praetor ‘quae fraudationis causa gesta erunt’. haec verba generalia sunt et continent in se omnem omnino in fraudem factam vel alienationem vel quemcumque contractum. quodcumque igitur fraudis causa factum est, videtur his verbis revocari, qualecumque fuerit: nam late ista verba patent. sive ergo rem alienavit sive acceptilatione vel pacto aliquem liberavit,
1 Ulpianus, On the Edict, Book LXVI. The Prætor says: “I will grant an action to the curator of property, or to anyone else to whom it is necessary to grant one, in a case of this kind, within the year in which he has a right to institute such a proceeding, where any act has been committed for the purpose of fraud with anyone who was not ignorant of said fraud, and I will also maintain this right of action against “The party himself who committed it.” 1The Prætor was compelled to introduce this Edict in order to protect the rights of creditors, by revoking any alienations of property which had been made for the purpose of defrauding them. 2The Prætor says, “where any act has been committed for the purpose of fraud.” These words have a general application, and include every kind of fraud which is committed, as well as every alienation, and every contract. Therefore, everything that is done for the purpose of committing fraud, no matter what it may be, is considered to be revoked by these words, for they have a broad application. If, therefore, the debtor should alienate any property, or give a release from liability for a debt to anyone or release anyone from an agreement;
2 Idem libro septuagesimo tertio ad edictum. idem erit probandum: et si pignora liberet vel quem alium in fraudem creditorum praeponat
2 The Same, On the Edict, Book LXXIII. The same rule should be adopted. And if he releases a pledge, or pays any person for the purpose of defrauding his creditors:
3 Idem libro sexagesimo sexto ad edictum. vel ei praebuit exceptionem sive se obligavit fraudandorum creditorum causa sive numeravit pecuniam vel quodcumque aliud fecit in fraudem creditorum, palam est edictum locum habere. 1Gesta fraudationis causa accipere debemus non solum ea, quae contrahens gesserit aliquis, verum etiam si forte data opera ad iudicium non adfuit vel litem mori patiatur vel a debitore non petit, ut tempore liberetur, aut usum fructum vel servitutem amittit. 2Et qui aliquid fecit, ut desinat habere quod habet, ad hoc edictum pertinet.
3 The Same, On the Edict, Book LXXI. Or if he provides one who owes him with an exception, or obligates himself for the purpose of defrauding his creditors; or pays money; or commits any other act to cheat them; it is obvious that the Edict will become operative. 1We should understand as fraudulent acts not only such as the debtor performs while making a contract, but also where he intentionally fails to appear in court, or permits an action to come to an end, or does not bring suit against a debtor, in order that he may be released by lapse of time, or intentionally loses an usufruct or a servitude. 2This Edict also applies to a person who commits any act for the purpose of parting with property which he has in his hands.
4 Paulus libro sexagensimo octavo ad edictum. In fraudem facere videri etiam eum, qui non facit quod debet facere, intellegendum est, id est si non utatur servitutibus:
4 Paulus, On the Edict, Book LXVIII. A debtor is understood to intend to defraud his creditors who does not do what he ought to do, for instance, if he does not make use of servitudes to which he is entitled.
5 Gaius libro vicensimo sexto ad edictum provinciale. sed et si rem suam pro derelicto habuerit, ut quis eam suam faciat.
5 Gaius, On the Provincial Edict, Book XXVI. Or if he should abandon some of his own property, in order that anyone may obtain it.
6 Ulpianus libro sexagensimo sexto ad edictum. Quod autem, cum possit aliquid quaerere, non id agit, ut adquirat, ad hoc edictum non pertinet: pertinet enim edictum ad deminuentes patrimonium suum, non ad eos, qui id agunt, ne locupletentur. 1Unde si quis ideo condicioni non paret, ne committatur stipulatio, in ea condicione est, ne faciat huic edicto locum. 2Proinde et qui repudiavit hereditatem vel legitimam vel testamentariam, non est in ea causa, ut huic edicto locum faciat: noluit enim adquirere, non suum proprium patrimonium deminuit. 3Simili modo dicendum est et si filium suum emancipavit, ut suo arbitrio adeat hereditatem, cessare hoc edictum. 4Sed et illud probandum, si legatum repudiavit, cessare edictum, quod Iulianus quoque scribit. 5Si servum suum heredem institutum alienavit, ut iussu emptoris adeat, si quidem in venditione nulla fraus est, sed in hereditate sit, cessat edictum, quia licuit ei etiam repudiare hereditatem: at si in ipsa servi alienatione fraus est, revocabitur, quemadmodum si eum in fraudem manumississet. 6Apud Labeonem scriptum est eum, qui suum recipiat, nullam videri fraudem facere, hoc est eum, qui quod sibi debetur receperat: eum enim, quem praeses invitum solvere cogat, impune non solvere iniquum esse: totum enim hoc edictum ad contractus pertinere, in quibus se praetor non interponit, ut puta pignora venditionesque. 7Sciendum Iulianum scribere eoque iure nos uti, ut, qui debitam pecuniam recepit ante, quam bona debitoris possideantur, quamvis sciens prudensque solvendo non esse recipiat, non timere hoc edictum: sibi enim vigilavit. qui vero post bona possessa debitum suum recepit, hunc in portionem vocandum exaequandumque ceteris creditoribus: neque enim debuit praeripere ceteris post bona possessa, cum iam par condicio omnium creditorum facta esset. 8Hoc edictum eum coercet, qui sciens eum in fraudem creditorum hoc facere suscepit, quod in fraudem creditorum fiebat: quare si quid in fraudem creditorum factum sit, si tamen is qui cepit ignoravit, cessare videntur verba edicti. 9Praeterea illud sciendum est eum, qui consentientibus creditoribus aliquid a fraudatore vel emit vel stipulatus est vel quid aliud contraxit, non videri in fraudem creditorum fecisse: nemo enim videtur fraudare eos, qui sciunt et consentiunt. 10Si quid cum pupillo gestum sit in fraudem creditorum, Labeo ait omnimodo revocandum, si fraudati sint creditores, quia pupilli ignorantia, quae per aetatem contingit, non debet esse captiosa creditoribus et ipsi lucrosa: eoque iure utimur. 11Simili modo dicimus et si cui donatum est, non esse quaerendum, an sciente eo, cui donatum, gestum sit, sed hoc tantum, an fraudentur creditores: nec videtur iniuria adfici is qui ignoravit, cum lucrum extorqueatur, non damnum infligatur. in hos tamen, qui ignorantes ab eo qui solvendo non sit liberalitatem acceperunt, hactenus actio erit danda, quatenus locupletiores facti sunt, ultra non. 12Simili modo quaeritur, si servus ab eo, qui solvendo non sit, ignorante domino ipse sciens rem acceperit, an dominus teneretur. et ait Labeo hactenus eum teneri, ut restituat quod ad se pervenit aut dumtaxat de peculio damnetur vel si quid in rem eius versum est. eadem in filio familias probanda sunt. sed si dominus scit, suo nomine convenietur. 13Item si necessarius heres legata praestiterit, deinde eius bona venierint, Proculus ait, etiamsi ignoraverint legatarii, tamen utilem actionem dandam: quod nequaquam dubium est. 14Huius actionis annum computamus utilem, quo experiundi potestas fuit, ex die factae venditionis.
6 Ulpianus, On the Edict, Book LXVI. This Edict, however, is not applicable to a person who does not take means to acquire property which he can obtain, for it only has reference to such as diminish their patrimony, and not to those who act in such a way as not to become more wealthy. 1Therefore he who fails to comply with the condition imposed, in order that a stipulation may not become operative, does not, by doing so, cause this Edict to take effect. 2Hence, if anyone rejects an estate whether it conies to him by law or by the terms of a will, he will not give cause for the application of the Edict, for while he refuses to acquire property, he does not diminish his own patrimony. 3In like manner, it must be said that, if a debtor emancipates his son, in order to enable him to accept an estate according to his own judgment, this Edict will not apply. 4The opinion also stated by Julianus should be adopted; that is, if a debtor refuses to accept a legacy, the Edict will not apply. 5If a debtor should sell his slave, who had been appointed an heir, in order that he might enter upon the estate by the direction of the purchaser, and not the sale, but only what related to the acceptance of the estate was fraudulent, the Edict will not apply, because he has a right to reject the estate. If, however, any fraud attached to the sale of the slave, it shall be revoked; just as if the debtor had fraudulently manumitted him. 6It was stated by Labeo that anyone who receives what belongs to him should not be considered to have committed fraud, that is to say, where anyone receives a debt to which he is entitled; for it would be unjust to hold that a debtor whom a Governor forces to make payment against his will can refuse to do so with impunity. This entire Edict has reference to contracts in which the Prætor does not intervene, as, for example, those involving pledges and sales. 7It should be noted that Julianus has said (and this is also our practice) that where anyone receives money that is due to him, before possession is taken of the property of the debtor, even though he is perfectly aware that the latter is insolvent, he does not come within the terms of this Edict, for he has only provided for his own interest. Any creditor, however, who receives what is due to him after the property of the debtor has been levied on, can be compelled to contribute his share, and be placed on the same footing as the other creditors; for he ought not to deprive them of anything after the property has been taken in execution, as, for this reason, the position of all the creditors becomes the same. 8This Edict punishes him who, knowing that a debtor has the intention of cheating his creditors, receives from him the property of which they have been defrauded. Hence, if any act is done for the purpose of defrauding creditors, and he who received the property was ignorant of the fact, the provisions of the Edict are not considered to apply. 9Moreover, it must be noted that where anyone either purchases or stipulates for any property belonging to a debtor, who has the intention of cheating his creditors (even though the latter may give their consent), or makes any other contract, he will not be held to have done anything to defraud his creditors; for no one is considered to defraud those who are aware of the fact, and give their consent. 10Where any business is done with: a minor for the purpose of defrauding his creditors, Labeo says that it must, by all means, be annulled, if the creditors are defrauded; for the reason that the ignorance of a minor, which results from his age, should not be injurious to his creditors, and profitable to himself. This is our practice. 11In like manner, we say where a donation is fraudulently made to anyone, there should be no inquiry as to whether the person to whom the article was given was aware of the nature of the transaction or not, but only whether the creditors were defrauded. He who was ignorant of the fraud is not understood to have been injured by it, as he only loses a source of gain, and no loss is inflicted upon him. Against those, however, who have experienced the generosity of one whom they did not know to be insolvent, an action should only be granted to the extent to which they have become pecuniarily benefited, and no farther. 12In like manner, if a slave receives an article from a person whom he himself knows to be insolvent, but his master is not aware of the fact, the question arises, will the master be liable? Labeo says that he will be liable to the extent of being compelled to return what came into his hands; or an action De peculio can be brought against him, or one De in rem verso, if he has profited by the transaction. The same rule should be adopted in the case of a son under paternal control. If, however, the owner of the slave was aware that the debtor was insolvent, he can be sued in his own name. 13Again, if the necessary heir has paid the legacies, and afterwards his property is sold, Proculus says that, even if the legatees were ignorant of his insolvency, an equitable action should, nevertheless, be granted. There is no doubt as to this. 14The available days of the year, during which suit can be brought from the date of the sale, should be computed by us in this action.
7 Paulus libro sexagensimo secundo ad edictum. Si debitor in fraudem creditorum minore pretio fundum scienti emptori vendiderit, deinde hi, quibus de revocando eo actio datur, eum petant, quaesitum est, an pretium restituere debent. Proculus existimat omnimodo restituendum esse fundum, etiamsi pretium non solvatur: et rescriptum est secundum Proculi sententiam.
7 Paulus, On the Edict, Book LXII. Where a debtor, with the intention of defrauding his creditors, sells a tract of land for less than its value to a purchaser who is aware of the fact, and then the creditors, to whom an action to set aside the sale was granted, claim the land, the question arises whether they should refund the price. Proculus thinks that the land must by all means be returned, even if the price is not refunded. The opinion of Proculus is confirmed by a rescript.
8 Venuleius Saturninus libro sexto interdictorum. Ex his colligi potest ne quidem portionem emptori reddendam ex pretio: posse tamen dici eam rem apud arbitrum ex causa animadvertendam, ut, si nummi soluti in bonis exstent, iubeat eos reddi, quia ea ratione nemo fraudetur.
8 Venuleius Saturninus, Interdicts, Book VI. From this it may be gathered that not even a part of the price paid by the purchaser should be returned to him. It can, however, be said that the matter ought to be investigated by an arbiter, to the end that he may order the money to be refunded, if it still is among the effects of the debtor; because, in this way, no one will be defrauded.
9 Paulus libro sexagensimo secundo ad edictum. Is, qui a debitore, cuius bona possessa sunt, sciens rem emit, iterum alii bona fide ementi vendidit: quaesitum est, an secundus emptor conveniri potest. sed verior est Sabini sententia bona fide emptorem non teneri, quia dolus ei dumtaxat nocere debeat, qui eum admisit, quemadmodum diximus non teneri eum, si ab ipso debitore ignorans emerit: is autem, qui dolo malo emit, bona fide autem ementi vendidit, in solidum pretium rei, quod accepit, tenebitur.
9 Paulus, On the Edict, Book LXII. A certain man knowingly purchased an article from a debtor whose property had been taken in execution, and then sold it to a bona fide purchaser. The question arose whether an action could be brought against the second purchaser. The opinion of Sabinus, that a bona fide purchaser is not liable, is the better one; because fraud should only injure him who commits it, just as we hold that a purchaser will not be liable if, being ignorant of the facts, he bought the property from the debtor himself. But he who bought it fraudulently, and afterwards sold it to a bona fide purchaser, will be liable for the entire sum which he received for the property.
10 Ulpianus libro septuagensimo tertio ad edictum. Ait praetor: ‘Quae Lucius Titius fraudandi causa sciente te in bonis, quibus de ea re agitur, fecit: ea illis, si eo nomine, quo de agitur, actio ei ex edicto meo competere esseve oportet, ei, si non plus quam annus est, cum de ea re, qua de agitur, experiundi potestas est, restituas. interdum causa cognita et si scientia non sit, in factum actionem permittam’. 1Ita demum revocatur, quod fraudandorum creditorum causa factum est, si eventum fraus habuit, scilicet si hi creditores, quorum fraudandorum causa fecit, bona ipsius vendiderunt. ceterum si illos dimisit, quorum fraudandorum causa fecit, et alios sortitus est, si quidem simpliciter dimissis prioribus, quos fraudare voluit, alios postea sortitus est, cessat revocatio: si autem horum pecunia, quos fraudare noluit, priores dimisit, quos fraudare voluit, Marcellus dicit revocationi locum fore. secundum hanc distinctionem et ab imperatore Severo et Antonino rescriptum est eoque iure utimur. 2Quod ait praetor ‘sciente’, sic accipimus ‘te conscio et fraudem participante’: non enim si simpliciter scio illum creditores habere, hoc sufficit ad contendendum teneri eum in factum actione, sed si particeps fraudis est. 3Si quis particeps quidem fraudis non fuit, verumtamen vendente debitore testato conventus est a creditoribus, ne emeret, an in factum actione teneatur, si comparaverit? et magis est, ut teneri debeat: non enim caret fraude, qui conventus testato perseverat. 4Alias autem qui scit aliquem creditores habere, si cum eo contrahat simpliciter sine fraudis conscientia, non videtur hac actione teneri. 5Ait praetor ‘sciente te’, id est eo, qui convenietur hac actione. quid ergo, si forte tutor pupilli scit, ipse pupillus ignoravit? videamus, an actioni locus sit, ut scientia tutoris noceat: idem et in curatore furiosi et adulescentis. et putem hactenus istis nocere conscientiam tutorum sive curatorum, quatenus quid ad eos pervenit. 6Praeterea sciendum est posse quaeri, quod dicitur in fraudem creditorum alienatum revocari posse, si idem sint creditores: et si unus creditor sit ex illis, qui fraudati sunt, sive solus tunc fuit sive, cum ceteris satisfactum est, hic solus remansit, probandum esse adhuc actioni fore locum. 7Illud certe sufficit, et si unum scit creditorem fraudari, ceteros ignoravit, fore locum actioni. 8Quid ergo, si ei, quem quis scit, satisfactum est? numquid deficiat actio, quia qui supersunt, non sunt fraudati? et hoc puto probandum: non tamen si dicat aliquis: ‘offero, quod debetur ei, quem scio creditorem’, audiendus erit, ut actionem eludat. 9Si fraudator heredem habuit et heredis bona venierint, non est in bonis quibus de agitur factum et ideo cessat haec actio. 10Si quid in fraudem creditorum fecerit filius, qui se poterat abstinere, et in integrum sit restitutus, quod se miscuerat, vel si quis fecit voluntarius etiam vel per aetatem vel quam aliam causam iustam in integrum meruit restitutionem, dicendum erit utilem actionem competere. idem et in servo necessario. sane cum illa distinctione hoc admittendum esse Labeo scribit, ut, si quidem protinus bona vendiderunt creditores vel absentibus vel paciscentibus creditoribus se necessarius miscuit, utriusque fraus revocetur, id est testatoris et ipsius: si vero passi sunt necessarium creditores et quasi in creditum habuerunt nomen eius vel dulcitudine usurarum vel qua alia ratione secuti sunt, dicendum est nihil revocari ex his, quae testator alienavit. 11Si impubes patri heres extiterit eiusque mortui bona veneant, separatione impetrata utriusque fraus erit revocanda, pupilli vel etiam tutoris, item curatoris. 12Si, cum in diem deberetur, fraudator praesens solverit, dicendum erit in eo, quod sensi commodum in repraesentatione, in factum actioni locum fore: nam praetor fraudem intellegit etiam in tempore fieri. 13Si cui solutum quidem non fuerit, sed in vetus creditum pignus acceperit, hac actione tenebitur, ut est saepissime constitutum. 14Si, cum mulier fraudandorum creditorum consilium inisset, marito suo eidemque debitori in fraudem creditorum acceptum debitum fecerit dotis constituendae causa, locum habet haec actio et per hanc omnis pecunia, quam maritus debuerat, exigitur nec mulier de dote habet actionem: neque enim dos in fraudem creditorum constituenda est: et hoc certo certius est et saepissime constitutum. exitus autem actionis erit, ut stipulatio, quae accepta facta fuerat, ex integro interponatur. 15Per hanc actionem et usus fructus et huiusmodi stipulatio: ‘in annos singulos dena dari spondes?’ exigi potest. 16Si debitorem meum et complurium creditorum consecutus essem fugientem secum ferentem pecuniam et abstulissem ei id quod mihi debeatur, placet Iuliani sententia dicentis multum interesse, antequam in possessionem bonorum eius creditores mittantur, hoc factum sit an postea: si ante, cessare in factum actionem, si postea, huic locum fore. 17Si ex constitutione divi Marci bona sint addicta alicui libertatium conservandarum causa, dicendum erit actionem cessare: ita enim succedunt, ut rata sint, quae pater familias gesserat. 18Annus huius in factum actionis computabitur ex die venditionis bonorum. 19Per hanc actionem res restitui debet cum sua scilicet causa. 20Et fructus, non tantum qui percepti sunt, verum etiam hi, qui percipi potuerunt a fraudatore, veniunt, sed cum aliquo modo, scilicet ut sumptus facti deducantur: nam arbitrio iudicis non prius cogendus est rem restituere, quam si impensas necessarias consequatur: idemque erit probandum et si quis alios sumptus ex voluntate fideiussorum creditorumque fecerit. 21Partum quoque in hanc actionem venire puto verius esse. 22Praeterea generaliter sciendum est ex hac actione restitutionem fieri oportere in pristinum statum, sive res fuerunt sive obligationes, ut perinde omnia revocentur, ac si liberatio facta non esset. propter quod etiam medii temporis commodum, quod quis consequeretur liberatione non facta, praestandum erit, dum usurae non praestentur, si in stipulatum deductae non fuerunt, aut si talis contractus fuit, in quo usurae deberi potuerunt etiam non deductae. 23Si condicionalis fuit obligatio, cum sua condicione, si in diem, cum sua die restauranda est. si tamen ea erat, cuius dies finitur, potest dici restitutionem intra id tempus posse postulari, quod tempus supererat obligationi, non utique intra annum. 24Haec actio post annum de eo, quod ad eum pervenit, adversus quem actio movetur, competit: iniquum enim praetor putavit in lucro morari eum, qui lucrum sensit ex fraude: idcirco lucrum ei extorquendum putavit. sive igitur ipse fraudator sit, ad quem pervenit, sive alius quivis, competit actio in id quod ad eum pervenit dolove malo eius factum est, quo minus perveniret. 25Haec actio heredi ceterisque successoribus competit: sed et in heredes similesque personas datur.
10 Ulpianus, On the Edict, Book LXXIII. The Prætor says: “Where Lucius Titius, with your privity and to your advantage, has disposed of any property for the purpose of defrauding his creditors, so that an action under my Edict will lie against him for the property in question, when no more than a year has elapsed, as an action with reference to said property can be brought, you must grant restitution, after proper cause has been shown; and even if you were not aware of the fact, I will grant an action in factum.“ 1When anything is done for the purpose of defrauding creditors, it is only set aside where fraud actually results, that is to say, where the creditors whom the person intended to defraud have sold his property. If, however, he has satisfied the claims of those whom he intended to defraud, and has obligated himself to other creditors, or if he has simply paid those whom he intended to defraud, and afterwards become indebted to others, annulment will not take place; but if he satisfied the claims of the first ones whom he intended to defraud by paying them the money of the others whom he had no intention of defrauding, Marcellus says that there will be ground for the annulment of the transaction. This distinction is mentioned in a Rescript of the Emperors Severus and Antoninus, and is recognized in our present practice. 2Where the Prætor says, “aware of the fact,” we must understand this to mean that I know that you are committing a fraud; for if I merely know that you have creditors, it will not be sufficient to render me liable to an action in factum, for I must have participated in the fraud. 3If anyone is not a participant in a fraud, and still, at the time of the sale of the debtor’s property, should be summoned by the creditors and notified by them in the presence of witnesses not to purchase the property, will he be liable to an action in factum if he should do so? The better opinion is that he will be liable, for anyone who is notified not to purchase in the presence of witnesses, and does so, is not free from fraud. 4It is, however, otherwise where anyone knows that another has creditors, and makes an absolute contract with him, without being aware of the fraud; for he is not considered to be liable to this action. 5The Prætor says, “aware of the fact,” that is to say, he is meant against whom this action can be brought. But what if the guardian of a ward was aware of the fraud, and his ward was not? Let us see whether there will be ground for an action based upon the knowledge of the guardian, and whether the same rule will apply to the curator of an insane person, or a minor? I think that the knowledge of the guardian or the curator will only injure the ward or the minor to the amount of property which comes into their hands. 6It should also be noted that, where it is alleged that a sale of property made for the purpose of defrauding creditors can be set aside, if the creditors are the same, even if one of them is of the number of those who have been defrauded (whether he is the only one remaining, or the claims of the others along with his have been satisfied), it must be held that there will still be ground for this action. 7It is certain that it can be brought, even if the contracting party knew that one of the creditors had been defrauded, although he was not aware that this was also the case with the others. 8But what if he who was supposed to have been defrauded has been paid; will he be liable to an action for the reason that the remaining creditors have not been the victims of fraud? I think that this opinion should be adopted. And if anyone, for the purpose of avoiding an action, should say, “I tender what is due to him whom I know to be a creditor,” he should not be heard. 9If the person intending to commit fraud has an heir, and the property of the latter is sold by his creditors, as this has no reference to the property in question, this action will not lie. 10If a son, who” has the right to reject an estate, should commit some act for the purpose of defrauding the creditors, and obtain complete restitution because he interfered in the affairs of the estate, or if even a voluntary heir should commit a fraudulent act for the same purpose, and is entitled to complete restitution on account of his age, or for any other good reason, it must be said that an equitable action can” be brought against him. The same rule applies to a slave who is a necessary heir. Labeo, however, says that this rule should be adopted with an exception, for if the creditors sell the property of an estate, and the necessary heirs commit any act with reference to it during the absence, or with the consent of the creditors, the fraudulent act of both parties, that is to say, of the testator and his slaves, will be revoked. If, however, the creditors permitted the necessary heir to act, and had faith in him, or, tempted by the prospect of a high rate of interest, or for some other reason, were induced to trust him, it must be held that any sale of the property made by the testator ought not to be set aside. 11If a minor, under the age of puberty, becomes the heir of his father, and dies, and his property is sold by his creditors after a separation has been obtained, any fraudulent sale made by the ward, or by his guardian or curator can be set aside. 12When a debt is due to me within a certain time, and the person intending to commit a fraud pays it before it is due, it must be said that the benefit which I have obtained from being paid in advance will afford ground for an action in factum, for the Prætor understands that the fraud was committed with reference to the time. 13Where a creditor has not been paid, but has received a pledge as security for an old claim, he will be liable to this action; as has been frequently set forth in constitutions. 14If a woman, with a view to defrauding her creditors, marries one of her debtors, and releases him from his obligation for the purpose of obtaining the amount as dowry, in fraud of her creditors, this action will lie; and, by means of it, all the money which her husband owed can be collected. The woman will not be entitled to bring suit to recover her dowry, for the dowry was constituted in fraud of her creditors; and this is absolutely certain, and has been frequently promulgated in constitutions. The effect of the action will be to reestablish unimpaired the stipulation from which her husband had been released. 15By means of this action an usufruct, as well as a stipulation in the following terms, “Do you promise to pay ten aurei every year?” can be enforced. 16If I pursue and arrest a debtor of mine who has several creditors, and had absconded, and I recover the money which he has stolen, and take from him what belongs to me, it was the opinion of Julianus that it made a great deal of difference whether this was done before the creditors of the debtor were placed in possession of his property, or afterwards. If it was done before, an action in factum will not lie; if it was done afterwards, there will be ground for the action. 17If the property of a deceased person has been adjudged to anyone, by the Constitution of the Divine Marcus, it must be held that for the purpose of preserving freedom this action will not lie; for he to whom it was adjudged succeeds to the estate with the understanding that whatever was done by the deceased was valid. 18The year during which the action in factum must be brought is reckoned from the day of the sale of the property. 19By means of this action, the property must be restored, but, of course, with any charges imposed upon it. 20The income derived from the property, not only that which has been collected, but also what could have been collected by the person guilty of fraud, is included. This rule, however, is capable of modification, for any expenses which have been incurred should be deducted, as he cannot be compelled by the decision of the court to restore the property, before he has been reimbursed for his necessary expenses. This rule should also be adopted where any other person has incurred expense with the consent of the sureties and the creditors. 21I think that the better opinion is that the offspring of a slave is included in this action. 22Moreover, generally speaking, it should be noted that by this action everything should be restored to its former condition, whether it consists of property or of obligations, so that whatever may have been done is set aside, just as if no release had been made. In consequence of this, any profit which would have been obtained in the meantime by the debtor, if no release had been given, must be returned; or if interest, which was not included in the stipulation, was not paid; or if the contract was of such a nature that interest could be collected under it, even if it was not agreed upon. 23If the obligation was conditional or had reference to a certain time, it must be re-established with the condition or the time. If, however, it was of such a character that the time upon which it was dependent had elapsed, it can be said that restitution could be asked for within the time which remains, for the discharge of the obligation, without waiting until the year had expired. 24This action can be brought after the year has elapsed, where any property which has come into the hands of him who is the object of it is involved; for the Prætor thought that it would be unjust to permit him to have any benefit who had profited by the fraud, and therefore he decided that he should be deprived of all gain. Therefore, whether the party in question himself committed the fraud, or someone else profited by it, the action can be brought with reference to. whatever has come into his hands, or if he has acted fraudulently to avoid acquiring it. 25This action is granted in favor of the heir and other successors, and against the heir and persons of this kind.
11 Venuleius Saturninus libro sexto interdictorum. Cassius actionem introduxit in id quod ad heredem pervenit.
11 Venuleius Saturninus, Interdicts, Book VI. Cassius introduced an action having reference to property which comes into the hands of an heir.
12 Marcellus libro octavo decimo digestorum. Si pater filio familias liberam peculii administrationem dederit, non videtur ei et hoc concessisse, ut in fraudem creditorum alienaret: talem enim alienationem non habet. at si hoc quoque concessit filio pater, ut vel in fraudem creditorum facere possit, videbitur ipse fecisse et sufficient competentes adversus eum actiones. etenim filii creditores etiam patris sunt creditores, cum eius generis videlicet habebunt actionem, ut his de peculio praestari necesse sit.
12 Marcellus, Digest, Book XVIII. If a father grants the free administration of his peculium to a son under his control, he is not held to have done so for the purpose of alienating it to defraud his creditors, for he himself has not the power to make an alienation of this kind. If, however, the father should grant the peculium, to his son with a view to defrauding his creditors, he will be held to have done this himself, and there will be sufficient ground for actions to be brought against him. For the creditors of the son are also the creditors of the father, as they will be entitled to an action of this kind in case it is necessary for money to be paid to them out of the peculium.
13 Paulus libro sexagensimo octavo ad edictum. Illud constat eum qui pignus tenet hac actione non teneri: suo enim iure et ut pignus, non rei servandae causa possidet.
13 Paulus, On the Edict, Book LXVIII. It is established that anyone who holds a pledge is not liable under this action, for he is in possession of it in his own right, and does not hold it for the purpose of preserving the property.
14 Ulpianus libro sexto disputationum. Hac in factum actione non solum dominia revocantur, verum etiam actiones restaurantur. ea propter competit haec actio et adversus eos, qui res non possident, ut restituant, et adversus eos, quibus actio competit, ut actione cedant. proinde si interposuerit quis personam Titii, ut ei fraudator res tradat, actione mandati cedere debet. ergo et si fraudator pro filia sua dotem dedisset sciente fraudari creditores, filia tenetur, ut cedat actione de dote adversus maritum.
14 Ulpianus, Disputations, Book VI. By this action in factum, not only the ownership of the property, but also the rights of action of the debtor are restored. Therefore, it will lie to compel those who are not in possession of the property to restore it, and also against those who have a right of action to compel them to assign it. Hence, if he who is guilty of fraud has introduced Titius, in order that he may transfer the property to him, he should be compelled to assign his right by an action on mandate. Therefore, if the fraudulent debtor gives a dowry for his daughter to anyone, knowing that his creditors are defrauded thereby, the daughter will be liable, and will be forced to assign the right of action to recover the dowry, to which she is entitled against her husband.
15 Iulianus libro quadragensimo nono digestorum. Si quis, cum haberet Titium creditorem et sciret se solvendo non esse, libertates dederit testamento, deinde dimisso Titio postea Sempronium creditorem habere coeperit et eodem testamento manente decesserit: libertates datae ratae esse debent, etsi hereditas solvendo non sit, quia, libertates ut rescindantur, utrumque in eorumdem persona exigimus et consilium et eventum et, si quidem creditor, cuius fraudandi consilium initum erat, non fraudatur, adversus eum qui fraudatur consilium initum non est. libertates itaque ratae sunt,
15 Julianus, Digest, Book XLIX. If anyone who has Titius as his creditor, being well aware that he is not solvent, makes a testamentary grant of freedom, and then, after having paid Titius in full, has Sempronius as his creditor, and dies, without making any change in his will, the grants of freedom should be confirmed, even if the estate is not insolvent; because, for grants of freedom to be rescinded, we require two conditions to exist, namely, the intention to commit fraud, and the perpetration of the same. And if the creditor, whom it was the intention to defraud in the beginning, was not cheated, there was originally no intention to deceive him who was actually defrauded. Therefore grants of freedom are confirmed :
16 Paulus libro quinto responsorum Papiniani. nisi priores pecunia posteriorum dimissi probentur.
16 Paulus, Opinions of Papinianus, Book V. Unless the creditors having prior claims are paid with the money of subsequent ones.
17 Iulianus libro quadragensimo nono digestorum. Omnes debitores, qui in fraudem creditorum liberantur, per hanc actionem revocantur in pristinam obligationem. 1Lucius Titius cum haberet creditores, libertis suis isdemque filiis naturalibus universas res suas tradidit. respondit: quamvis non proponatur consilium fraudandi habuisse, tamen qui creditores habere se scit et universa bona sua alienavit, intellegendus est fraudandorum creditorum consilium habuisse: ideoque et si filii eius ignoraverunt hanc mentem patris sui fuisse, hac actione tenentur. 2Si vir uxori, cum creditores suos fraudare vellet, soluto matrimonio praesentem dotem reddidisset, quam statuto tempore reddere debuit, hac actione mulier tantum praestabit, quanti creditorum intererat dotem suo tempore reddi: nam praetor fraudem etiam in tempore fieri intellegit.
17 Julianus, Digest, Book XLIX. All debtors who are released for the purpose of defrauding creditors are, by this action, restored to their former liabilities. 1Lucius Titius, having creditors, transferred all his property to his freedmen, who were also his natural children. The opinion was given that, although it was not suggested that Titius proposed to commit fraud, still, as he knew that he had creditors, and alienated all his property, he should be understood to have had the intention of defrauding them; and, therefore, although his children were not aware that this was the intention of their father, they would be liable under this action. 2If a husband, intending to defraud his creditors, after the dissolution of his marriage, returns his wife’s dowry before the time prescribed by law for him to return it, the wife will be liable under this action for the amount of the interest of the creditors in having her dowry returned at the proper time; for the Prætor understands that payment made before the designated time is fraudulent.
18 Papinianus libro vicensimo sexto quaestionum. Etsi pignus vir uxori vel uxor viro remiserit, verior sententia est nullam fieri donationem existimantium. quod sine dubio, si in fraudem creditorum fiat, actione utili revocabitur. idemque est et si quivis debitor in fraudem creditorum pignus omiserit.
18 Papinianus, Questions, Book XXVI. If a husband returns a pledge given him by his wife, or a wife returns one given to her by her husband, the better opinion is that of those who think that no donation was made. There is, however, no doubt if this was done for the purpose of defrauding creditors that the transfer can be set aside by a prætorian action. The same rule applies where anyone relinquishes a pledge for the purpose of defrauding the creditors of his debtor.
19 Idem libro undecimo responsorum. Patrem, qui non exspectata morte sua fideicommissum hereditatis maternae filio soluto potestate restituit omissa ratione Falcidiae, plenam fidem ac debitam pietatem secutus exhibitionis, respondi non creditores fraudasse.
19 The Same, Opinions, Book XI. I gave it as my opinion that a father had not defrauded his creditors who, without waiting for his death, transferred the estate of his wife which had been left in trust to their son, after having released him from his control, without taking any account of the Falcidian portion; and I held that the father had fully executed his trust, and had perfectly discharged the duty required of him.
20 Callistratus libro secundo quaestionum. Debitorem, qui ex senatus consulto Trebelliano totam hereditatem restituit, placet non videri in fraudem creditorum alienasse portionem, quam retinere potuisset, sed magis fideliter facere.
20 Callistratus, Questions, Book II. It is settled that a debtor who has transferred an entire estate, in accordance with the Trebellian Decree of the Senate, is not considered to have defrauded his creditors, if he also transfers the portion which he was entitled to retain by law, but that he has, with the greatest fidelity, complied with the wishes of the deceased.
21 Scaevola libro primo responsorum. Debitor in fraudem creditoris cum vicino de finibus pignori dati fundi pactus est: quaesitum, an is, qui a creditore emit, de finibus agere possit. respondit secundum ea quae proponerentur non idcirco minus agere posse, quod debitor ignorante creditore pactus esset.
21 Scævola, Opinions, Book I. A debtor, with the intention of defrauding his creditor, entered into an agreement with a neighbor with reference to the boundaries of a tract of land which he had hypothecated. The question arose whether he who purchased the land from the creditor could bring an action to establish the boundaries. The answer was that, according to the facts stated, he would not be any the less entitled to bring the action, because the debtor made the agreement without the knowledge of his creditor.
22 Idem libro quinto responsorum. Cum in vetus creditum unus creditor pignora accepisset, quaero, an in fraudem ceterorum creditorum factum nullius momenti esset. respondit creditorem non idcirco prohibendum a persecutione pignorum, quod, in vetus creditum ut obligaretur, pactus esset, nisi id in fraudem ceterorum creditorum factum sit et ea via iuris occurratur, qua creditorum fraudes rescindi solent.
22 The Same, Opinions, Book V. Where a creditor receives a pledge to secure an old claim, I ask whether his act is of no effect, as having been performed for the purpose of defrauding the other creditors. The answer was that the creditor should not be prevented from pursuing the pledge, because he had agreed that it should be given as security for an old debt, unless this was done for the purpose of defrauding other creditors, and legal proceedings should be taken by which acts defrauding creditors are usually rescinded.
23 Idem libro trigensimo secundo digestorum. Primo gradu scripti heredes cum animadverterent bona defuncti vix ad quartam partem aeris alieni sufficere, famae defuncti conservandae gratia ex consensu creditorum auctoritate praesidis provinciae secundum constitutionem ea condicione adierunt hereditatem, ut creditoribus dumtaxat partem praestarent: quaesitum est, an manumissi testamento et libertates et alimenta consequi possint. respondit libertates quidem, si in fraudem creditorum datae non essent, competere, legata vero, si solvendo hereditas non esset, non deberi.
23 The Same, Digest, Book XXXII. When certain heirs, appointed in the first degree, ascertained that the estate of the deceased was scarcely sufficient to satisfy the fourth part of his indebtedness, for the purpose of preserving his reputation with the consent of the creditors, and by the authority of the Governor of the province entered upon the estate on condition of only paying a portion of their claims to the creditors; the question arose whether the slaves manumitted by the will could obtain their freedom and the means of support which had been bequeathed to them. The answer was that the grants of freedom would take effect, provided they had not been left for the purpose of defrauding the creditors, but that the legacies would not be due if the estate was insolvent.
24 Idem libro singulari quaestionum publice tractatarum. Pupillus patri heres extitit et uni creditorum solvit: mox abstinuit hereditate paterna: bona patris veneunt: an id quod accepit creditor revocandum sit, ne melioris condicionis sit quam ceteri creditores? an distinguimus, per gratificationem acceperit an non, ut, si per gratificationem tutorum, revocetur ad eandem portionem, quam ceteri creditores fuerint laturi: sin vero iuste exegerit, ceteri creditores neglexerint exactionem, interea res deterior facta sit, vel mortalitate vel subductis rebus mobilibus vel rebus soli ad irritum perductis, id quod acceperit creditor revocari nullo pacto potest, quoniam alii creditores suae neglegentiae expensum ferre debeant. quid ergo, si, cum in eo essent, ut bona debitoris mei venirent, solverit mihi pecuniam, an actione revocari ea possit a me? an distinguendum est, is optulerit mihi an ego illi extorserim [ed. maior invito et] <ed. minor invito, ut>, si extorserim invito, revocetur, si non extorserim, non revocetur? sed vigilavi, meliorem meam condicionem feci, ius civile vigilantibus scriptum est: ideoque non revocatur id quod percepi.
24 The Same, Questions Discussed in Public. A minor became the heir of his father, paid one of the creditors, and afterwards rejected his father’s estate. The property of his father was sold. Should what the creditor received be returned, to prevent him from enjoying a greater advantage than the other creditors; or shall we make a distinction if he received this as a favor, so that if he was treated with partiality by the guardians, his share may be reduced in proportion to those of the other creditors? If, however, he collected his claim legally, and the other creditors neglected to collect theirs, and, in the meantime, the property became deteriorated either by death, by the theft of chattels, or by the depreciation in value of the land; that which the said creditor received can, by no means, be recovered, as the other creditors should pay the penalty for their negligence. But what if matters were in such a condition that the property of my debtor being about to be sold, he should pay me my debt; can the money be recovered from me by an action? Should a distinction be made where he tendered me the money, and where I compelled him to pay me against his consent? And if I forced him to make payment involuntarily, can it be recovered, but if not, will this be done? But I have watched over my interests; I have improved my condition; the Civil Law was made for those who are diligent in protecting their own rights; and hence what I received cannot be recovered.
25 Venuleius libro sexto interdictorum. Si fraudator fideiussori suo scienti acceptum tulerit, si et reus non ignoraverit, uterque tenebitur, si minus, is qui scierit. si tamen ille, cui acceptum factum est, solvendo non sit, videndum est, an in reum, etiamsi ignoraverit, actio danda sit, quia ex donatione capit. contra si reo scienti acceptum latum sit, fideiussor quoque, si et ipse scierit, tenebitur: si vero ignoraverit, numquid non aeque actio in eum dari debeat, quoniam magis detrimentum non patitur, quam lucrum faciat? in duobus autem reis par utriusque causa est. 1Ssi a socero fraudatore sciens gener accepit dotem, tenebitur hac actione et, si restituerit eam, desinit dotem habere: nec quicquam emancipatae divortio facto restituturum Labeo ait, quia haec actio rei restituendae gratia, non poenae nomine daretur ideoque absolvi solet reus, si restituerit. sed si priusquam creditores cum eo experirentur, reddiderit filiae dotem iudicio dotis nomine conventus, nihilo minus eum hac actione teneri Labeo ait nec ullum regressum habiturum ad mulierem: sin vero sine iudice, videndum, an ulla repetitio competat ei. quod si is ignoraverit, filia autem scierit, tenebitur filia: si vero uterque scierit, uterque tenebitur. at si neuter scierit, quidam existimant nihilo minus in filiam dandam actionem, quia intellegitur quasi ex donatione aliquid ad eam pervenisse, aut certe cavere eam debere, quod consecuta fuerit se restituturam: in maritum autem, qui ignoraverit, non dandam actionem, non magis quam in creditorem, qui a fraudatore quod ei deberetur acceperit, cum is indotatam uxorem ducturus non fuerit. 2Item si extraneus filiae familiae nomine fraudandi causa dotem dederit, tenebitur maritus, si scierit: aeque mulier: nec minus et pater, si non ignoraverit, ita ut caveat, si ad se dos pervenerit, restitui eam. 3Si procurator ignorante domino, cum sciret debitorem eius fraudandi cepisse consilium, iussit servo ab eo accipere, hac actione ipse tenebitur, non dominus. 4Non solum autem ipsam rem alienatam restitui oportet, sed et fructus, qui alienationis tempore terrae cohaerent, quia in bonis fraudatoris fuerunt, item eos, qui post inchoatum iudicium recepti sint: medio autem tempore perceptos in restitutionem non venire. item partum ancillae per fraudem alienatae medio tempore editum in restitutionem non venire, quia in bonis non fuerit. 5Proculus ait, si mulier post alienationem conceperit et antequam ageretur, pepererit, nullam esse dubitationem, quin partus restitui non debeat: si vero, cum alienaretur, praegnas fuerit, posse dici partum quoque restitui oportere. 6Fructus autem fundo cohaesisse non satis intellegere se Labeo ait, utrum dumtaxat qui maturi an etiam qui inmaturi fuerint, praetor significet: ceterum etiamsi de his senserit, qui maturi fuerint, nihilo magis possessionem restitui oportere. nam cum fundus alienaretur, quod ad eum fructusque eius attineret, unam quandam rem fuisse, id est fundum, cuius omnis generis alienationem fructus sequi: nec eum, qui hiberno habuerit fundum centum, si sub tempus messis vindemiaeve fructus eius vendere possit decem, idcirco duas res, id est fundum centum et fructus decem eum habere intellegendum, sed unam, id est fundum centum, sicut is quoque unam rem haberet, qui separatim solum aedium vendere possit. 7Haec actio etiam in ipsum fraudatorem datur, licet Mela non putabat in fraudatorem eam dandam, quia nulla actio in eum ex ante gesto post bonorum venditionem daretur et iniquum esset actionem dari in eum, cui bona ablata essent. si vero quaedam disperdidisset, si nulla ratione reciperari possent, nihilo minus actio in eum dabitur et praetor non tam emolumentum actionis intueri videtur in eo, qui exutus est bonis, quam poenam.
25 Venuleius, Interdicts, Book VI. When a fraudulent debtor gives a release to someone who owes him, with the knowledge of the surety of the latter, and the principal debtor was not ignorant of the fact, both parties will be liable, or at least the one who was familiar with the circumstances. Where, however, he who was released was not solvent, let us see whether the action should be granted against the principal debtor, even if he was ignorant of the facts, because he received the debt as a donation. On the other hand, if the release was given to the principal debtor and he was aware of the fraud, his surety will also be liable, if he also was aware of it; but if he did not know of it, why should not an action also be granted against him, as he does not sustain any more damage than he obtains benefit? Where there are two principal debtors, the case of both is the same. 1Where a son-in-law accepts a dowry from his father-in-law, knowing that he intends to defraud his creditors, he will be liable under this action. If he returns the property, he will cease to have the dowry, and Labeo says that nothing should be returned to an emancipated daughter, after a divorce has taken place, because this action is granted for the purpose of recoyering the property and not to inflict a penalty; and hence the defendant, by making restitution, is discharged from liability. If, however, before the creditors have brought suit against the father-in-law, the son-in-law should return the dowry to the daughter, he can be sued in an action on dowry; and Labeo holds that he will still be liable under this action, without having any recourse against the woman. But let us see whether he will have a right to claim anything without instituting judicial proceedings. If he was ignorant of the fraudulent intent of the father-in-law, but the daughter knew it, she will be liable; and if both of them knew it, they will both be liable. If neither of them knew it, some authorities hold that an action against the daughter ought, nevertheless, to be granted, because it is understood that something in the form of a donation has come into her hands; or, at all events, she should give security to return whatever she may obtain. An action, however, should not be granted against the husband, if he was ignorant of the intended fraud, as he would not have married a wife who had no dowry; any more than it should be granted against a creditor who receives what is due to him from a debtor intending to commit a fraudulent act. 2Likewise, if a stranger, for the purpose of defrauding his creditors, gives a dowry to a girl under paternal control, her husband will be liable if he was aware of his intent, and the woman also, as well as her father, if he was not ignorant of it; so that the husband must give security to return the dowry if it should come into his hands. 3If an agent, without the knowledge of his principal, orders a slave to receive property from a debtor who has the intention of defrauding his creditors, and he is aware of this, he himself, and not his principal, will be liable to this action. 4Not only must the property which has been alienated be returned, but also any crops which have taken root in the earth at the time of the alienation, because they constitute part of the property of the fraudulent debtor, as well as those which were gathered after the suit was begun. Any crops gathered in the meantime will not, however, be included in the restitution. In like manner, the offspring of a female slave who has been fraudulently alienated, which was born in the meantime, will not be included in the restitution, because it did not form part of the property of the debtor. 5Proculus says that, if a female slave conceives after the alienation took place, and has a child before suit is brought, there is no doubt that the child should not be returned. If, however, she was pregnant at the time she was sold, it may be said that the child must also be returned. 6With reference to crops attached to the soil, Labeo says that by this expression it is not clear whether the Prætor meant the crops which were ripe, or also those which had not yet matured. Moreover, if he referred to those which were ripe, possession need not be restored on that account, for when a tract of land is alienated, the land and everything attached to it are held to constitute but one thing, that is to say, the crops are included in an alienation of any kind; nor should he be understood to have two different things, who, during the winter, has a tract of land which is worth a hundred aurei, and at the time of harvest or vintage, can sell the crops for ten aurei, that is to say, the land is worth a hundred aurei, and the crops are worth ten; but as he has but one thing, that is, the tract of land worth a hundred aurei, so also he has but one thing who can sell his house separate from the land. 7This action is also granted against a fraudulent debtor, although Mela does not think that it ought to be done, because none is granted against him for anything which took place before the sale of his property, and it would be unjust for an action to be granted against one who had been deprived of all his possessions. If, however, he should lose some of them and they cannot be recovered in any way, an action will, nevertheless, be granted against him. The Prætor is not considered to take into account the benefit of this proceeding in the case of one who had been deprived of his property by way of penalty.