Gaius, On the Provincial Edict, Book IV. An heir, however, is not entitled to this action, because it should be sufficient for him that he has a right of action to recover the money which was paid by the deceased:

Gaius, On the Provincial Edict, Book IV. The year when a person is paid money to prevent suit being brought against him begins at the time when the payment was made, if he then had power to bring suit to recover it. But in the case of a person with reference to whom another paid money to have suit brought against him, it may be doubted whether the year should be reckoned from the day when the money was paid, or from the day when the party knew that it had been paid; for where he does not know that there is reason for suit to be brought against him, he is held not to have the power of bringing one, and the better opinion is that the year should be reckoned from the time when he did know.

Gaius, On the Provincial Edict, Book IV. The fear which we say is meant by this Edict is not that experienced by an irresolute man, but that which would reasonably affect a man of very decided character.

Gaius, On the Provincial Edict, Book IV. It is certain that if the sureties are released by the principal debtor employing intimidation, an action may be brought against the sureties to compel them to renew their liability. 1If I, compelled by you through fear, release your obligation, it is in the discretion of the judge, before whom proceedings are instituted under this Edict, not only to cause the obligation to be renewed by you personally, but to compel you to furnish sureties, either the same ones, or others, no less solvent; and, in addition, to renew the pledges which you gave in the same place.

Gaius, On the Provincial Edict, Book IV. With reference to the fact that the Proconsul promises an action against the heir only to the extent of what has come into his hands, it must be understood that this refers to the granting of a perpetual right of action.

Gaius, On the Provincial Edict, Book IV. For a person cannot be held to be entitled to any action, when it would be useless on account of the insolvency of his adversary.

Ad Dig. 4,3,8ROHGE, Bd. 10 (1874), S. 402: Haftung aus Rath und Empfehlung nur für Dolus.Gaius, On the Provincial Edict, Book IV. If, however, you knew that the person had lost his property, and, for the sake of gain, stated to me that he was solvent, and action on the ground of fraud would properly be granted against you; since you falsely recommended another with the intention of deceiving me.

Gaius, On the Provincial Edict, Book IV. If a legatee, to whom property was bequeathed in addition to what is prescribed by the Lex Falcidia, persuades the heir, who is still ignorant of the value of the estate, either by oath, or by some other deception, that the estate is amply sufficient to pay all the legacies, and by this means obtains the payment of his own legacy in full; an action on the ground of fraud will be granted.

Gaius, On the Provincial Edict, Book IV. A proconsul promises to grant an action against an heir to the amount of what comes into his hands, that is to say, to the amount by which the estate is enriched by the transaction when it passes to him:

Gaius, On the Provincial Edict, Book IV. Therefore, if a release fraudulently obtained by you has been given you for a debt, an action can, without doubt, be brought against your heir. But where property has been delivered to you in this way, and you die, if the property is in existence, proceedings can be instituted against your heir; and if it is not in existence, this cannot be done. An action, however, is granted against an heir without reference to time, for the reason that he must not profit by another’s loss. In accordance with this, an action in factum, without reference to time, should be granted against the party who was guilty of the fraud for the amount to which he became enriched.

Gaius, On the Provincial Edict, Book IV. Where a woman intervenes in behalf of a third party in the suit of a minor, no action can be granted him against the woman, but he, just like other persons, will be barred by an exception; because under the Common Law he will be entitled to restitution by an action against the original debtor; and this is the case if the original debtor is solvent, otherwise, the woman cannot invoke the aid of the Decree of the Senate.

Gaius, On the Provincial Edict, Book IV. But where restitution is granted, the second purchaser can have recourse against his vendor. The same rule applies where the purchase has passed through the hands of several persons.

Gaius, On the Provincial Edict, Book IV. There is no question about the following, namely, that where a minor pays something which he does not owe, in a matter where demand for restitution is not allowed by the Civil Law, he is entitled to a prætorian action for its recovery; since such a demand is usually granted on proper grounds, even to persons who are over twenty-five years of age. 1Where a young man of this kind, who is entitled to restitution applies for it, it should be granted upon his application, or upon that of his agent, who has been expressly directed to ask for it; but where the party only alleges a general mandate for transacting the business of his principal, he should not be heard.

Gaius, On the Provincial Edict, Book IV. Restitution should be granted under all circumstances to a father in behalf of his son; even though the latter does not consent to it; for the reason that a risk attaches to the father who is liable to an action De Peculio. From which it is evident that other relatives or connections are in a different legal position, and should not be heard, except where they make application with the consent of the minor; or where the life of the minor is such that there is reason for him to be prohibited from having charge of his property. 1Where a minor borrows money and squanders it, the Proconsul should refuse to grant his creditor an action against him. Where, however, the minor lends money to a party who is needy, no other proceedings should be taken, except that the minor should be ordered to assign to his creditor those rights of action which he has against him to whom he loaned the money. If he has purchased, with the money, some land for a higher price than he should have been asked, the matter ought to be settled by ordering the vendor to take back the land and return the price, so that the creditor may recover his money from the minor without any loss to another. From this we learn what should be done where a minor purchases with his own money something for more than it is worth; but in this, as well as in the former instance, the vendor who returns the purchase-money must also return the interest which he obtained, or which he ought to have obtained from the use of said money, and shall receive the profits of the land by which the minor was enriched. Also, on the other hand, where a minor sells property for less than it is worth, the purchaser must be ordered to return to him the land with its profits, and the minor must restore as much of the price as enured to his profit. 2Where a minor under twenty-five years of age gives a release to his debtor without good reason, he is entitled to an action for restitution not only against the debtor, but also against his sureties; as well as an action for any pledges delivered to him; and where he had two principal debtors, and gave one of them a release, he will have a right to an action for restitution against both. 3From this we understand that if a minor should make a renewal of a contract to his disadvantage; for instance, if he should, for the purpose of novation, transfer the liability from a solvent debtor to one who is insolvent, he must be granted restitution against the former debtor. 4Restitution also must be granted against those who cannot be proceeded against on the ground of fraud, unless they are persons who are excepted by some special law.

Gaius, On the Provincial Edict, Book IV. Capitis Minutio is a change of condition.

Gaius, On the Provincial Edict, Book IV. Those obligations which are understood to be fulfilled in accordance with natural law, it is evident cannot be lost by a change of condition, because no civil rule can destroy natural rights; therefore a right of action for dowry which is founded on what is good and equitable, will still remain unimpaired after a change of condition.

Gaius, On the Provincial Edict, Book IV. In like manner, we say that it has reference to a person who conceals himself, not for the purpose of avoiding a suit, but because he is impeded by a press of business.

Gaius, On the Provincial Edict, Book IV. The Proconsul takes every precaution to prevent any person’s legal position from becoming worse through the act of another; and as he understands that the result of a trial sometimes causes us a great deal more hardship when we have a different adversary than we had at the beginning, he provided against this by stating: “That if anyone, by transferring the property in question should substitute another party in his place as an opponent, and he did this purposely with fraudulent intent, he will be liable to an action in factum to the extent of the interest which the other party had in not having another adversary.” 1Therefore, if a litigant opposes a man from another province, or one who is more powerful, to us as an adversary, he will be held liable;

Gaius, On the Provincial Edict, Book IV. The reason for this is that if I institute proceedings against some one who belongs to another province, I am compelled to do so in his own province, and we can do nothing on an equal footing where the other party is more powerful. 1Moreover, if the man whom we are suing manumits a slave who is claimed in the action, our condition becomes less advantageous, because the Prætors favor freedom. 2Moreover, if you have erected some structure on a tract of land where you may become liable to an interdict Quod vi aut clam; or, in an action granted against a person who diverts rain-water from its natural course, you alienate said piece of property, our condition is understood to be worse; because if I institute proceedings against you, you will be compelled to remove the structure at your own expense, but now I am forced to bring an action against a different party from the one who performed the act, and will be compelled to remove the structure at my own expense; for the reason that he who is in possession of anything of this kind erected by another, is only liable under these proceedings so far as to permit the structure to be removed. 3If I give you notice of a new structure, and you then alienate the land, and the purchaser finishes the work; it is held that you will be liable to this action, for the reason that I cannot bring suit against you based on a notice of a new structure, because you have not built anything; nor can I do so against the party to whom you have conveyed the property, because he has not been notified. 4From all which it is evident that as the Proconsul promises to grant complete restitution, the plaintiff in this action may by order of court obtain damages to the extent of his interest in not having another adversary; as, for instance, if he had incurred some expense, or had suffered some other inconvenience on account of the substitution of another adversary. 5What then would happen, if the person against whom a prætorian action can be brought is ready to defend it, just as if he was still in possession of the property? In this instance it is very properly held that the action based upon this Edict will be refused him.

Gaius, On the Provincial Edict, Book IV. Because it relates to the recovery of property it still appears to be granted on account of an offence.

Gaius, On the Provincial Edict, Book IV. The action for property wrongfully appropriated is a personal one.

Gaius, On the Provincial Edict, Book IV. Where an action is brought against a ward on account of a false guardian, and, in the meantime, the term prescribed by law has elapsed, or the property has been acquired by usucaption, the guilty party must sustain all the inconvenience which may arise, just as if he were a genuine guardian, and suit had been brought against him within the prescribed time.

Gaius, On the Provincial Edict, Book IV. Corporeal property is especially subject to usucaption, with the exception of sacred and holy things, and such as are the public property of the Roman people, and of cities, as well as persons who are free.

Gaius, On the Provincial Edict, Book IV. There is more included in the term “restitution” than in that of production; for to produce means to bring forward corporeal property, and to restore is to place someone in possession, and surrender the profits. Many other things are also included in the term “restitution.”