Quarum rerum actio non datur
(Under what circumstances an action shall not be granted.)
1 Ulpianus libro septuagensimo sexto ad edictum. Iusiurandum vicem rei iudicatae optinet non immerito, cum ipse quis iudicem adversarium suum de causa sua fecerit deferendo ei iusiurandum. 1Si pupillus sine tutoris auctoritate detulerit iusiurandum, dicemus non obstare exceptionem istam, nisi tutore auctore in iudicio delatio facta sit. 2Si petitor fundi iusiurandum detulerit adversario, ut, si auctor eius iurasset suum fundum se tradidisse, ab ea controversia discessurum se, exceptio possessori fundi dabitur. 3Si fideiussor iuravit, si quidem de sua persona tantum iuravit, quasi se non esse obligatum, nihil reo proderit: si vero in rem iuravit, dabitur exceptio reo quoque. 4Si manumisero eum servum, qui negotia mea gesserat in servitute, deinde stipulatus ab eo fuero, quod negotia mea gesserit, quidquid ob eam rem, si tunc liber fuisset, eum mihi dare oporteret, id dari, deinde ex stipulatu agam, non summoveri me exceptione: neque enim oneratum se hoc nomine potest queri libertus, si lucrum abruptum ex re patroni non faciat. 5Quae onerandae libertatis causa stipulatus sum, a liberto exigere non possum. onerandae autem libertatis causa facta bellissime ita definiuntur, quae ita imponuntur, ut, si patronum libertus offenderit, petantur ab eo semperque sit metu exactionis ei subiectus, propter quem metum quodvis sustineat patrono praecipiente. 6In summa si in continenti impositum quid sit liberto, quod ἐπαιωρούμενον oneret eius libertatem, dicendum est exceptioni locum facere. sed si post intervallum, habet quidem dubitationem, quia nemo eum cogebat hoc promittere: sed idem erit probandum et hic, tamen causa cognita, si liquido appareat libertum metu solo vel nimia patrono reverentia ita se subiecisse, ut vel poenali quadam stipulatione se subiceret. 7Si libertatis causa societatem libertus cum patrono coierit et patronus cum liberto pro socio agat, an haec exceptio sit necessaria? et puto ipso iure tutum esse libertum adversus exactionem patroni. 8Exceptionem onerandae libertatis causa, sicut et ceteras fideiussori non esse denegandas sciendum est, nec ei quidem, qui rogatu liberti reus factus est: sed et ipsi liberto, sive procurator ad defendendum a reo datus fuerit sive heres ei exstiterit. cum enim propositum sit praetori in huiusmodi obligationibus reo succurrere, non servaturum propositum suum, nisi fideiussorem quoque et eum, qui rogatu liberti reus factus fuerit, adversus patronum defenderit: etenim parvi refert, protinus libertus patrono cogatur dare an per interpositam fideiussoris vel rei personam. 9Sive autem ipsi patrono sit promissum sive alii voluntate patroni, onerandae libertatis causa videtur factum et ideo haec exceptio locum habebit. 10Quod si patronus libertum suum delegaverit creditori, an adversus creditorem, cui delegatus promisit libertatis causa onerandae, exceptione ista uti possit, videamus. et Cassius existimasse Urseium refert creditorem quidem minime esse submovendum exceptione, quia suum recepit: verumtamen libertum patrono posse condicere, si non transigendae controversiae gratia id fecit. 11Item si libertus debitorem suum patrono delegaverit, nulla exceptione summovendus est patronus, sed libertus a patrono per condictionem hoc repetet. 12Haec exceptio non tantum ipsi liberto, verum successoribus quoque liberti danda est: et versa vice heredem patroni summovendum, si haec persequatur, sciendum est.
1 Ulpianus, On the Edict, Book LXXVI. An oath taken in court has the same effect as a judgment, and this is not unreasonable, as where a party tenders an oath to his adversary, he appoints him judge in his own case. 1If a ward tenders an oath without the authority of his guardian, we hold that this exception will not operate as a bar, unless it was tendered in court by the authority of the guardian. 2If a litigant who claims a tract of land tenders the oath to his adversary, and says that if the person from whom he obtained the land is willing to swear that he delivered it to him, he will abandon the case, an exception will be granted to the party in possession of the land. 3If a surety should make oath in court only with reference to himself personally, that is to say, that he is not liable, this will be of no advantage to the principal debtor; and if he should take the oath with reference to the property, an exception will be granted to the principal debtor. 4If I manumit a slave who, while in servitude, was accustomed to transact my business, and I afterwards stipulate with him for the payment of all that he would have been obliged to pay me, if he had been free at the time when he transacted my business, and I bring suit under the stipulation, I will not be barred by an exception, for a freedman cannot complain that he is oppressed, because he was not allowed to profit pecuniarily through the use of the property of his patron. 5If I make a stipulation for the purpose of placing restrictions on freedom, I cannot enforce it against my freedman. Restrictions on freedom have very properly been defined to be such as are imposed in such a way that if a freedman should offend his patron, they can be exacted from him, so that he remains continually under the apprehension that they will be required, and, on account of this apprehension, he will submit to anything that his patron demands. 6In a word, if some obligation is imposed upon a freedman, to take effect the moment he obtains his liberty, it must be said that there will be ground for an exception. If, however, this is done after an interval, the question admits of doubt, for no one could force him to make such a promise. Still, in this instance, the same conclusion must be arrived at if, after an investigation has been made, it is apparent that the freedman subjected himself to his patron in such a manner as to be rendered liable to a penalty under the stipulation either through fear alone, or on account of excessive respect for him. 7If a freedman should form a partnership with his patron in consideration of obtaining his liberty, and his patron should bring an action on partnership against him, will this exception be necessary? I think that the freedman will be released from the exactions of his patron merely by operation of law. 8It must be remembered, that an exception allowed because of oppressive conditions imposed on freedom, just like other exceptions, should not be refused a surety, nor anyone who, at the request of a freedman, has rendered himself liable; nor will it be denied to the freedman himself if he should be appointed the attorney of the principal debtor in order to defend his case, or if he should become his heir. For, as the intention of the Prætor, in obligations of this kind, is to assist the principal debtor, his design would not be effected unless the freedman should defend the surety, or him who had become liable at the request of the freedman against his patron. For it makes little difference whether the freedman is obliged to pay the patron directly, or to do so through the intervention of the surety, or through someone who has become liable on his account. 9Whether the promise has been made for the benefit of the patron himself, or for that of another with the consent of the former, it will be considered to have been made with the design of placing restrictions upon freedom, and therefore there will be ground for this exception. 10If, however, a patron should delegate his freedman to his creditor, let us see whether the former can avail himself of this exception against the creditor to whom, having been delegated, he made a promise which had the effect of placing restrictions upon his freedom. Cassius says it was the opinion of Urseius that the creditor could, by no means, be barred by the exception, because he only received what he was entitled to; but that the freedman could recover from his patron what he had paid, if he had not done this for the purpose of settling the controversy which had arisen with reference to his manumission. 11Again, if a freedman should delegate his own debtor to his patron, the latter cannot be barred by an exception, but the freedman can recover the amount of the debt from his patron by means of a personal action. 12This exception should be granted not only to the freedman himself, but also to his successors; and, on the other hand, it should be noted that the heir of the patron can be barred if he attempts to collect the money.
2 Paulus libro septuagensimo primo ad edictum. Si filio familias delatum sit iusiurandum et iuraverit patrem suum dare non oportere, danda est patri exceptio. 1Si in alea rem vendam, ut ludam, et evicta re conveniar, exceptione summovebitur emptor. 2Si servus promittat domino pecuniam, ut manumittatur, cum alias non esset manumissurus dominus, eamque liber factus spondeat: dicitur non obstare exceptionem patrono, si eam petat: non enim onerandae libertatis causa haec pecunia promissa est. alioquin iniquum est, dominum et servo carere et pretio eius. totiens ergo onerandae libertatis causa pecunia videtur promitti, quotiens sua sponte dominus manumisit et propterea velit libertum pecuniam promittere, ut non exigat eam, sed ut libertus eum timeat et obtemperet ei.
2 Paulus, On the Edict, Book LXXI. If the oath is tendered to a son under paternal control, and he swears that his father does not owe anything, the exception should be granted to the father. 1If, where a game of chance is being conducted, I sell something in order that I may play, and the property having been evicted, suit is brought against me, the purchaser will be barred by an exception. 2If a slave promises a sum of money to his master in order that he may be manumitted, and his master would not otherwise have manumitted him, and, having become free, he renews his promise, it is held that his patron will not be barred by an exception if he sues to recover the money, for this sum was not promised for the purpose of placing restrictions upon freedom; otherwise it would be unjust for the master to be deprived of the slave as well as of his price. Therefore, money is promised for the purpose of imposing restrictions upon freedom whenever a master voluntarily manumits his slave, and afterwards wishes him to promise a sum of money, not with the intention of exacting it from him, but in order that his freedmen may fear and obey him.