Javolenus, Epistles, Book I. You owed me a sum of money without any condition, and by my direction you promised Attius to pay said sum of money under a condition. While this condition is pending, your obligation toward me is just the same as if you had promised me the money on the contrary condition; if, while the condition is pending, I bring suit, will this be of no effect? The answer was: I have no doubt that the money with reference to which I stipulated with you absolutely will remain as a loan to you, even if the condition relating to Attius—who, with my consent, stipulated for the payment of said money under a condition—is not fulfilled: for the legal position is the same as if no stipulation had been made by him, and, while the fulfilment of the condition is pending, I cannot bring an action for the money, because it is uncertain whether it may not be due under the stipulation, and I will be held to have brought my action too soon.

The Same, Epistles, Book I. Where a party has become surety for another for a certain quantity of wheat, without any reference to its quality; I think that he will release the principal debtor by furnishing any kind of wheat whatsoever, but he cannot recover any other kind of wheat from the principal debtor, except that of the most inferior quality, by the delivery of which he could have released himself from the claim of the stipulator. Therefore, if the principal debtor is prepared to give to the surety the same kind of wheat, by giving which to the creditor, he himself could have been released, and the surety brings an action for the same kind of wheat which he furnished, that is to say, grain of superior quality, I think that he can be barred by an exception on the ground of fraud.

The Same, Epistles, Book I. Where the same property is bequeathed to two of my slaves, and I am unwilling to accept the legacy left to one of them, the whole of it will belong to me, for the reason that I acquire through one of these slaves the share of the other, just as if the legacy had been bequeathed to my slave and one belonging to another person.

The Same, Epistles, Book I. When we are appointed heirs, and the estate has been accepted, all rights to it pass to us; but possession does not belong to us until it is taken naturally. 1So far as those who fall into the hands of the enemy are concerned, the law relating to their retention of the rights of property is a peculiar one, for they lose corporeal possession of the same, nor can they be held to possess anything when they themselves are possessed by others; therefore it follows that, when they return, a new acquisition of possession is required, even if no one had possession of their property in the meantime. 2I also ask, if I chain a freeman in order to possess him, whether I possess through him everything which he possesses. The answer is that if you claim a freeman, I do not think that you possess him; and, as this is the case, there is much less reason that his property should be possessed by you; nor does the nature of things admit that we can possess anything by the agency of one whom I do not legally have in my power.

Javolenus, Epistles, Book I. If you purchase a slave with the understanding that, if some condition should be complied with, the sale will be void, and the slave is delivered to you, and fulfillment of the condition afterwards annuls the transaction, I think that the time during which the slave was in possession of the purchaser should benefit the vendor, because a sale of this kind is similar to the redhibitory clause for the return of property, which is introduced into contracts for sales; and, in a case of this kind, I have no doubt that the time that the purchaser held the property will benefit the vendor, as properly speaking, no sale took place.

Ad Dig. 42,5,28Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 559, Note 11; Bd. III, § 559, Note 25.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.

Javolenus, Epistles, Book II. Where the usufruct of a house is bequeathed as long as any part of said house remains, the legatee will be entitled to an usufruct in the entire ground.

The Same, Epistles, Book II. I sell land which belongs to me alone; can I impose a servitude upon it to the effect that it shall be servient to myself and my neighbor? In like manner, if I sell property which I own in common with another, can I provide that it shall be subject to a servitude for the benefit of myself and my joint-owner? I answered that no one can stipulate for a servitude for the benefit of anyone but myself; and therefore the addition of the neighbor must be considered superfluous, as the entire servitude will belong to him who stipulated for it. Again, when the land held in common is sold, I cannot subject it to the servitude for the benefit of myself and my joint-owner, for the reason that a servitude cannot, through the act of one of the joint owners be acquired for the benefit of land held in common.

Javolenus, Epistles, Book III. I alleged in an action that the defendant had no right to have his timbers inserted into my wall; must he also give security that he will not insert any into it hereafter? I answered that I think it is part of the fluty of the judge to compel him to give security with reference to future work as well.

The Same, Epistles, Book II. Where I am entitled to a servitude over several tracts of land, and I acquire one of the tracts situated between two others, I think that the servitude remains, for a servitude is merged only when the party to whom it belongs cannot make use of it; but where he has acquired land between two other tracts, it may be held that he is entitled to a right of way through the first and last of these.

Javolenus, Epistles, Book II. An arbiter cannot decide that land belonging to an estate shall be subject to a servitude attaching to land which is not a part of said estate; for the reason that the authority of a judge cannot extend beyond what is before the court.

The Same, Epistles, Book II. I stipulated for a certain sum of money to be paid by Titius at a certain place, he demands of me a sum of money which I owe him; I ask whether the interest I had in having the amount paid to me in a certain place, as aforesaid, should be included in the set-off? The answer was, that if Titius makes the demand, the sum also which he promised to pay in a certain place must be included in the set-off; but this must be done with reference to his case also, that is to say, the interest Titius had in having the sum of money owing to him paid in a place agreed upon must be taken into consideration.

The Same, Epistles, Book II. “The tract of land is purchased for myself and Titius.” I ask whether the sale includes a portion of said land, or the whole of it, or whether it is void? I answered: I think that the mention of Titius is superfluous, and therefore that the purchase of the entire tract is mine.

The Same, Epistles, Book II. I made a bequest to a slave without granting him his freedom, and I then bequeathed to Mævius his choice of my slaves. He selected the same slave, and I ask whether what was bequeathed to the latter is also due to him. The answer was, I do not think that the legacy left to the said slave will belong to his master.

The Same, Epistles, Book II. I stipulated that either Damas or Eros should be given to me. When you gave me Damas, I was in default in receiving him. Damas is dead. Do you think that I am entitled to an action under the stipulation? The answer was, that according to the opinion of Massurius Sabinus, I think that you cannot bring suit under the stipulation; for he very properly held that if the debtor was not in default in paying what he owed, he would immediately be released from liability.

The Same, Epistles, Book III. The usufruct of certain land was conditionally bequeathed to Titius, you being charged with the same as heir, and you sold and delivered the said land to me after reserving the usufruct. I ask, if the condition was not fulfilled, or if it should be and the usufruct should terminate, to whom would it belong? The answer was, I understand, that your question has reference to the usufruct which was bequeathed; and therefore, if the condition on which the legacy was dependent was fulfilled, there is no doubt that the usufruct will belong to the legatee; and if, by any accident, it should be lost to him, it will revert to the ownership of the estate. Where, however, the condition is not fulfilled, the usufruct will belong to the heir, for all the rules which have relation to the heir are carried out, just as those that pertain to the loss of an usufruct are ordinarily observed. But, in a sale of this kind, what has been agreed upon between the purchaser and the vendor must be considered; so that if it is apparent that the usufruct was reserved on account of the legacy, even though the condition was not fulfilled, it should be restored by the vendor to the purchaser.

The Same, Epistles, Book III. Seius, having appointed his freedman his heir, charged him with a legacy to Mævius of the usufruct of a tract of land. The freedman died, leaving Mævius his heir. I ask if the son of Seius should demand prætorian possession of the estate of the freedman against Mævius, whether the share of the land which was due to him, after deducting the usufruct, shall be transferred to him; or whether all of it ought to be transferred, because he had obtained possession of the property which belonged to the freedman at the time of his death. The answer was, I think that the usufruct should be restored to its original condition; therefore it would be best to demand an arbiter, in order that, by his decision, the usufruct may be transferred in its entirety.

Javolenus, Epistles, Book III. A freedman who desired to transfer a tract of land to Seius for the purpose of defrauding his patron took the following course. Seius directed Titius to receive the land in such a way that an obligation of mandate was contracted between Seius and Titius. I ask whether after the death of the freedman, the patron will only be entitled to an action against Seius, who gave the mandate, or against Titius who holds the property, or whether he can proceed against either of them whom he may select. The answer was that the action will be granted against the person who obtained the donation, provided the property came into his hands, since the entire transaction which was carried on with his consent should be embraced in the decision rendered against him. It cannot be held that he should be forced to deliver property of which another has possession, as he can recover it by an action on mandate, so that he can either himself restore it to the patron, or he can compel him with whom he contracted the mandate to do so. But what shall we say if the party who intervened was in no way guilty of fraud? We entertain no doubt that an action cannot be brought against him. For he must not be considered guilty of fraud who did a favor for his friend, by which he made an acquisition for another than himself, through the fraudulent act of the freedman.

Javolenus, Epistles, Book IV. I do not doubt that a servitude of land can be duly acquired through a slave belonging to a municipality.

Javolenus, Epistles, Book IV. A man whose wife was pregnant fell into the hands of the enemy. I ask where a son was born, at what time the will executed by the testator, who was there in the enjoyment of his civil rights, was broken, and if the son should die before the father, whether the testamentary heirs will be entitled to the estate. I answered that I did not think that there could be any doubt, in accordance with the Cornelian Law, which was enacted for the confirmation of the wills of those who died while in captivity, that, if a son was born, the will of a testator who was in the hands of the enemy would be broken. It follows, therefore, that the estate will belong to no one by this will.

Javolenus, Epistles, Book IV. If you have been appointed heir to one-sixth of an estate, under a certain condition, and Titius, to whom you were substituted, refuses to take his share, and you accept the estate by virtue of the substitution, and the condition under which you were entitled to a sixth is fulfilled, I ask whether it will be necessary for you to enter upon the estate in order to avoid losing your sixth. The answer was, that it makes no difference whether the estate is entered upon by reason of the substitution, or on account of the first appointment; since in either instance a single acceptance will be sufficient. Hence the sixth part which was granted to me under a condition belongs to me alone. 1Ad Dig. 29,2,76,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 597, Note 11.Moreover, if you fail to accept the sixth of the estate to which you were appointed the heir, do you think that by accepting under the substitution you will be entitled to a part of the share of Titius? I do not doubt that if I can become the heir by accepting under the first appointment, it will be in my power either to reject, or claim any part of the estate which may be desired.

The Same, Epistles, Book IV. A tract of land belonging to another was bequeathed to you. As the heir could not obtain it, except at an unreasonable price, he bought it for a sum far above its actual value, and the result of the purchase was that a reduction of the legacies was required under the Falcidian Law. I ask if the land had been bought for what it was really worth, and the legacies had not been subject to diminution, whether, in this instance, the heir would have the right to reserve a part due to the legatees, because, in compliance with the will of the deceased, he had purchased the land for more than its value. The answer was that the heir could not, under the Falcidian Law, charge the other legacies with what he had paid to the legatee over and above the true price of the land, because his negligence ought not to prejudice the legatee, any more than he could release himself from liability by tendering the actual value of the property.

The Same, Epistles, Book IV. The possession of a testator will profit the heir if, in the meantime, no one else had possession.

The Same, Epistles, Book IV. I possess, in good faith, a female slave who had been stolen, and whom I purchased for two aurei. Attius stole her from me, and her owner and myself brought suit against him for theft. I ask, what assessment of damages should be made for both parties? The answer was double the amount of his interest for the purchaser, and for the master double the value of the woman. The fact that the penalty for theft is paid to two persons should not cause any difficulty, because although this is done on account of the same property, it is paid to the purchaser by virtue of his possession, and to the owner on the ground of his ownership.

The Same, Epistles, Book IV. There is a question as to what difference exists between the possession of a tract of land or of a field. A tract of land includes everything belonging to the soil; a field is a kind of a tract which is adapted to the use of man. Possession, in law, is distinct from the ownership of land; for we call possession everything which we hold, without the ownership of the property belonging to us, or where there is no possibility of its becoming ours. Therefore possession indicates use, and a field means the ownership of the property. A tract of land is the common name for both the things above mentioned; for a tract of land and possession are different forms of the same expression.

Javolenus, Epistles, Book V. I ask whether he who has been appointed a guardian by will, but is ignorant of the fact, can be held liable for attending to the business of the ward as an actual guardian, or for transacting said business as one acting in the capacity of a guardian. I answered that I do not think that he can be held liable as an actual guardian, because he must know that he is the guardian, in order to discharge the duties of the office with the same spirit with which a guardian should act.

Javolenus, Epistles, Book VI. But, after the emancipation of the son, the father will only be entitled to an action to the extent of whatever forms part of the peculium of his son, or when the latter may have paid out anything for the benefit of his father; since the property which it is to the interest of the father to have, will belong to him by virtue of the legacy. 1The inquiry may be made, whether the father can bring suit under the will for this purpose, with the result that the son will also be released from liability to an action. It has been held by certain authorities that the proceeding has this effect, because it is considered that it is to the interest of the father that his rights should remain unimpaired, where he gives his son his peculium after his emancipation. I, however, hold the contrary opinion, and I think that nothing more should be granted to the father under the terms of the will, than that he should be required to pay only what could be collected by the heir.

The Same, Epistles, Book VI. If I give you something in order that you may donate it to Titius, in my name, and you give it to him in yours, do you think that it becomes his property? The answer was that if I give you something for you to give to Titius in my name, and you give it to him in your own name, so far as the technicality of the law is concerned, it does not become the property of the person who receives it, and you will be liable for theft; but the more liberal construction is that if I bring an action against the person who has received the property, I can be barred by an exception on the ground of fraud.

The Same, Epistles, Book VI. I rented land to a man against whom I was about to assert my claim, founded on prescription, as an heir. I ask whether you think that this lease has any force or effect. If you think that it has no effect, do you believe that the right of usucaption of said land will, nevertheless, continue to exist? I also ask, if I should sell the land, what is your opinion of the points which I have just raised? The answer was that if he who is in possession of the land, as heir, leased it to the owner of the same, the lease is void, because the owner rented his own land. Hence it follows that the lessor does not retain possession, and prescription based upon long occupancy will not continue to exist. The same rule of law applies to a sale, because, as in the case of a lease, the purchase of one’s own property is void.

The Same, Epistles, Book VI. When anyone stipulates for one of several tracts of land, which bear the same name, and the said tract has no specified designation, he stipulates for something which is uncertain; that is to say, he stipulates for the tract of land which the promisor may choose to give him. The will of the promisor, however, is in abeyance, until what has been promised is delivered.

The Same, Epistles, Book VI. He cannot be considered to be free from fraud who refuses to obey the order of a magistrate.

Javolenus, Epistles, Book VII. “Let Attius be my heir to the Cornelian Estate, and let the two persons named Titius be my heirs to such-and-such a house.” The persons named Titius will be entitled to half of the estate, and Attius to the remaining half. This opinion is held by Proculus; what do you think of it? The answer is that the opinion of Proculus is correct.

The Same, Epistles, Book VII. Labeo has frequently stated that the slave of a person born after my death can be appointed my heir. The truth of this is readily established, for the reason that a slave forming part of an estate can be appointed an heir before the estate is entered upon, even though at the time of the execution of the will he did not belong to anyone.

Javolenus, Epistles, Book VII. Where the same property has been bequeathed to me to be delivered by both the appointed and the substituted heirs, and they, having relinquished their rights under the will, have possession of the estate by operation of law, the entire legacy is due to me from both of them; still, if I have obtained it from one, I cannot collect it from the other, hence I can proceed against whichever one of them I choose.

The Same, Epistles, Book VII. “I devise to Mævius half of such-and-such a tract of land, I devise to Seius the other half, and I devise the same land to Titius.” If Seius should die, his share will accrue to the other legatees, because the land, having been left separately and by shares, as well as altogether, it is necessary that the part which is without an owner should accrue proportionally to each of the legatees to whom the bequest was separately made. 1An heir having been appointed by me, I charged him with a legacy for the benefit of his wife, as follows, “Let Seius, my heir, pay Titia a sum equal to whatever comes into the hands of Seius, by way of dowry, through Titia.” I ask whether the expenses incurred through legal proceedings instituted with reference to the dowry can be deducted. The answer was there is no doubt, where a bequest was made to a wife as follows: “I charge you, my heir, to give to her an amount equal to what comes into your hands,” that the entire dowry will be due to the woman, without any deduction of expenses. But the same rule that applies to the will of a husband who returns her dowry to his wife should not be observed with reference to the will of a stranger; for the words, “What comes into your hands,” are to be interpreted as a limiting clause; but where a man leaves property in this way to his wife, he is considered to bequeath what his wife could recover by an action on dowry.

Javolenus, Epistles, Book VII. A certain man who had been notified to discontinue the construction of a new building sold the land, and the purchaser continued the work; do you think that either the purchaser or the vendor is liable for having violated the Edict? The answer was that if, after notice had been served, the construction of the building was continued, the purchaser, that is to say, the owner of the land, would be liable; because a notice for discontinuance is not personal, and he only is liable who is in possession of the property on which the notice to discontinue the work was served.

The Same, Epistles, Book VII. An heir and an estate, although they have two different names, are still regarded as one person.

Javolenus, Epistles, Book VII. If a slave belonging to an estate, or to anyone who is in the hands of the enemy, should receive security for the payment of a debt, the time prescribed for said security begins to run immediately; for we must ascertain not whether he who placed a lien on the property can bring an action, but whether the person in whose favor it was encumbered has a right to do so against the former. Otherwise, it would be extremely unjust if, on account of the rank of the plaintiffs, the obligations of the defendants should be prolonged, since nothing can be done by them to prevent suit from being brought against them.

The Same, Epistles, Book VII. Labeo says that the clause, “Let any son born to my son, be my heir,” does not seem to include a daughter. Proculus is of the opposite opinion. Labeo appears to me to have followed the form of the words; Proculus the intention of the testator. I have no doubt that the opinion of Labeo is not correct.

The Same, Epistles, Book VII. Whenever a decision cannot be rendered without causing injury, that course should be adopted which is productive of the least injustice.

The Same, Epistles, Book VIII. A freedman who died insolvent, having passed oyer his patron, left his estate to foreign heirs. I ask whether the patron can demand prætorian possession contrary to the provisions of the will. The answer was that, as the estate had been entered upon by the appointed heirs, the patron can demand prætorian possession, because an estate is considered to be solvent whenever an heir is found to accept it: And, indeed, it is absurd that the right of the patron to demand prætorian possession of an estate should be based on the estimate of others, and not on the wishes of the patron himself; and that the little that the latter can claim in a case of this kind should be taken from him. For many reasons may arise for which it might be expedient for the patron to demand prætorian possession, even if the amount of the indebtedness which the freedman left behind him exceeds the assets of the estate; for instance, if certain lands are included in the estate of the freedman in which are situated the burial places of the ancestors of the patron, and the latter takes advantage of his rights to obtain prætorian possession, in order that the said burial places may be obtained by him as his share, he considering this right to be of great importance to him; or, for example, where a slave whom the patron values, not from the price which he might bring but for the affection which he entertains for him, forms part of the estate. Therefore, the patron should be none the less entitled to claim possession of the estate, who forms an estimate of the value of the property of the freedman, rather by his own opinion, than by the computation of others; for an estate should be considered to be solvent both because an heir is found for it, and for the reason that prætorian possession of the same is demanded.

The Same, Epistles, Book VIII. I ask whether you think the following stipulation is dishonorable, or not. A natural father appointed, as his heir, his son, whom Titius had adopted under the condition that he should be released from paternal control. His adoptive father refused to emancipate him, unless he was willing to stipulate for the payment of a sum of money by a third party in consideration of his manumission. After his emancipation, the son entered upon the estate, and then the father, under the terms of the stipulation above mentioned, demanded the money. The answer was, I do not think that the ground of this stipulation is dishonorable, as otherwise he would not have emancipated his son. Nor can the terms of the stipulation be considered unjust, if the adoptive father desired to obtain some advantage, on account of which his son would have more esteem for him after his emancipation.

The Same, Epistles, Book IX. If at the time when my slave whom you purchased in good faith is serving you, he is wounded by one of your slaves; it has been held that I have, in every instance, a right to institute proceedings against you under the Lex Aquilia.

Javolenus, Epistles, Book IX. Where a man who had two houses left one of them to me and the other to you, and there was a party-wall which separated the buildings, I think that the said wall will belong to us in common, just as if it had been left to us both jointly, and therefore neither you nor I will have any right to prevent the other from inserting a beam into said wall; for it has been established that whenever a joint-owner holds any property he is entitled to all the rights appurtenant to the same. Therefore, in a case of this kind an arbiter must be appointed for the purpose of dividing the common property, if this should become necessary.

The Same, Epistles, Book IX. Ad Dig. 41,3,23 pr.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 152, Note 3.I do not think that he who has purchased a house possesses anything but the house itself. For if he is considered to possess the different things of which the house is built, he does not possess the house itself; as, after the materials of which it is composed are separated, they cannot be understood to represent the entire house. Add to this, if anyone should say that the separate materials of which the house was composed are possessed, it will be necessary to hold that there will be ground for the prescription of the movable property composing the house, during the time fixed for that purpose, and that a longer time will be necessary to acquire by usucaption the soil on which it stands. This is absurd, and it is by no means in conformity to the Civil Law that the same thing should be obtained by usucaption at different times; as, for example, since a house is composed of two different things, the soil, and what is erected upon it, that they united should change the time established for the usucaption of all immovable property by long-continued possession. 1If you should be judicially deprived of a column forming part of your house, I think that you will be entitled to an action on purchase against the vendor, and, in that way, can hold the entire property. 2If, however, the house has been demolished, in order that the movable property may be entirely acquired by usucaption, where it has been in possession for the term prescribed for that purpose, the time during which it composed the building cannot be legally reckoned; for, as you were not in possession of the materials alone and apart from the building, so, the house having been demolished, you cannot separately and distinctly possess the materials of which it was constructed; nor can it be held that the same property was possessed at the same time as both real estate and personalty.

Javolenus, Epistles, Book IX. The estimate of the injury sustained should not date from the time when judgment was rendered, but from the time when the injury was committed.

Ad Dig. 49,14,11Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 622, Note 3.Javolenus, Epistles, Book IX. No property can be claimed by the Treasury, except that which remains after the creditors have been satisfied; for that only is considered to belong to anyone which remains after the indebtedness has been paid.

The Same, Epistles, Book IX. He is not considered to have paid less than he owed against whom an action for a larger sum will not lie.

Ad Dig. 5,1,35ROHGE, Bd. 9 (1873), S. 33: Zulässigkeit der Klagen auf Feststellung eines obligatorischen Verhältnisses.The Same, Epistles, Book X. It is not true that, as the obligation of a surety can be left dependent upon circumstances or contracted for at some future time, so also a suit may be contingent, or in such terms that an obligation may be subsequently incurred; for I do not think that anyone would doubt that a surety can be accepted before the obligation of the principal debtor is incurred, but issue cannot be joined before some indebtedness arises.

The Same, Epistles, Book X. I stipulated with Titius as follows, “If some woman marries me, do you promise to give me ten aurei by way of dowry?” The question arose whether such a stipulation was valid. The answer was that if the dowry was promised to me, stipulating as follows: “Do you promise to pay me ten aurei by way of dowry, no matter what woman I marry?” there is no reason why the money should not be due, if the condition was complied with. For when a condition dependent upon the act of some person who is uncertain can create an obligation, as, for instance, “Do you promise to pay ten aurei if anyone ascends to the Capitol?” or, “If anyone demands ten aurei of me, do you promise to pay as many?” there is no reason why the same answer should not be given as in the case where a dowry was promised. 1Ad Dig. 45,1,108,1ROHGE, Bd. 16 (1875), Nr. 109, S. 427, 429: Ergänzung unbestimmt gelassener Vereinbarungen. Arbitrium boni viri.No promise is valid which depends upon the will of the person who makes it.

Javolenus, Epistles, Book X. If I accept a surety under the following terms, “Do you agree to be responsible for the delivery of a thousand measures of wheat, to be paid for with your money, as security for the ten aurei which I have lent?” the surety will not be liable, because he cannot become responsible for something different from what has been lent, because the estimate of the value of the property which is considered as merchandise can be made in money; just as a sum of money can be estimated in merchandise.

The Same, Epistles, Book X. The money which you owe me, or any other property which I direct you to produce in my presence, when this is done, causes you immediately to be released, and the property to belong to me. For as the possession of the said property is not actually held by anyone, it is acquired by me, and is, as it were, considered to be delivered to me manu longa.

The Same, Epistles, Book X. Every provision contained in a will is not considered to have any effect, unless it was valid at the time it was made.

The Same, Epistles, Book XI. An agreement was made between you and myself that you would sell me a certain number of tiles at a special price. What would you do in a case of this kind, would you consider it to be a sale or a lease? The answer was that, if it was agreed I should furnish you with the material for the tiles to be made on my land, I think it would be a purchase, and not a lease; for a lease only exists where the material of which anything is made always remains the property of the same party, but whenever it is changed and alienated, the transaction should be understood to be rather a purchase than a lease.

Javolenus, Epistles, Book XI. When I sold a tract of land, the agreement was that, until the entire amount was paid, the purchaser should lease it for a certain rent. When the money is paid, should a receipt be given for the rent? The answer was that good faith requires that what was agreed upon should be done, but that the purchaser should not be responsible to the vendor for a larger sum than the rent of the property would amount to during the time when the money was not paid.

Javolenus, Epistles, Book XI. I leased a tract of land under the condition that, if it was not cultivated in compliance with the terms of the lease, I should have the right to lease it again to another, and that the tenant should indemnify me for any loss which I might sustain. In this instance, it was not agreed that, if I rented the land for more money, the excess should be paid to you; and, as no one was cultivating the land, I, nevertheless, leased it for more. I ask whether I should give the amount of the excess to the first lessee. The answer was that, in obligations of this kind, we should pay particular attention to what was agreed upon between the parties. It is held, however, that in this instance, it was tacitly agreed that nothing should be paid if the land was rented for more money; that is to say, this provision was inserted in the agreement only for the benefit of the lessor. 1Ad Dig. 19,2,51,1ROHGE, Bd. 11 (1874), Nr. 51, S. 158: Merkmal des Werkverdingungsvertrages.I hired work to be done under the condition of paying a certain amount every day for said work to the party employed. The work being badly done, can I bring an action against him on the lease? The answer was, if you hired this work to be done on condition that the party employed to do it should be liable to you for its being properly performed, even though it was agreed upon that a certain sum of money should be paid for each piece of work, the contractor will still be responsible to you if the work was badly done. For, indeed, it makes no difference whether the work is performed for one price, or whether payment is made for each portion of the same, provided the whole of it must be performed by the contractor. Therefore, an action on lease can be brought against him who performed the work badly, unless payment was arranged for separate portions of it, so that it might be performed according to the approval of the owner; for then the contractor is not considered to guarantee to the owner the excellence of the entire work.

Javolenus, Epistles, Book XI. If a slave, who is given mortis causa to a wife before her husband dies, should enter into some stipulation, I think that the effect of the obligation would remain in abeyance until the husband is either dead, or is free from the danger of death on account of which he made the donation, and if either of these events takes place by which the donation is annulled or confirmed, this also will either confirm or annul the stipulation.

The Same, Epistles, Book XI. Where a legacy is bequeathed to a person who can only receive a portion of the same, with the understanding that it is to be delivered to a third party, it has been decided that he can take the whole legacy.

Javolenus, Epistles, Book VII. Where land was devised to a certain person under the following condition, “If he should not manumit his slave,” and, if he did manumit him, that the devise of the land should pass to Mævius, the legatee furnished security not to free the slave, received the bequest, and afterwards emancipated him. I ask whether anything is due to Mævius. The answer was that if the bequest had been as follows, “If he should not manumit his slave,” and security was furnished, the party could receive the legacy from the heir, and if he afterwards manumitted the slave, the agreement, having become operative, he must either deliver the land to the heir, or pay him its value, and in this instance the heir must give it to him to whom the legacy was due under this condition.

Javolenus, Epistles, Book XI. Seius Saturninus, Admiral of the Britannic Fleet, by his will appointed Valerius Maximus, captain of a trireme, his fiduciary heir, and charged him to transfer his estate to his son Seius Oceanus, when the latter arrived at the age of sixteen years. Seius Oceanus died before reaching that age. Then Malleus Seneca, who alleged that he was the uncle of Seius Oceanus, claimed his property on the ground of his being the-next of kin. Maximus, the captain of the trireme, also claimed the estate, because the person to whom he had been ordered to transfer it was dead. I ask to which of these persons the estate belongs, to Valerius Maximus, the captain of the trireme, the fiduciary heir, or to Mallius Seneca, who asserts that he is the uncle of the deceased boy? I answered that, if Seius Oceanus, to whom the estate was bequeathed in trust by the will of Seius Saterninus, when he attained the age of sixteen years, was to be transferred by Valerius Maximus, the fiduciary heir, should have died before reaching the prescribed age, the estate left in trust would pass to him who was entitled to the other property of Oceanus, because the time for the execution of the trust arrived during the lifetime of Oceanus; that is to say, provided that, by prolonging the time of delivery, the testator was considered to have intended to commit the guardianship of his son to the fiduciary heir, rather than to have appointed an uncertain time for the execution of the trust.

Javolenus, Epistles, Book XI. You stipulated that certain work should be done to your satisfaction before a certain date, and you received sureties who, if it should not be done within the prescribed time, agreed to be liable for the amount that you would have paid for having it done; and because the work was not performed, you gave it to a contractor, and as the latter did not furnish security, you did the work yourself. I ask whether the sureties will be liable. The answer was, that according to the terms of the stipulation mentioned by you, the sureties will not be liable, for you do not do what was agreed upon in the stipulation, that is to say, you did not contract for the work to be performed, although you did so afterwards; for the contract which was subsequently made was just the same as if it had not been entered into, since you immediately began to do the work yourself.

The Same, Epistles, Book XI. Every definition in the Civil Law is subject to modification, for a slight discrepancy may render it inapplicable.

The Same, Epistles, Book XII. An estate cannot, under any circumstances, belong to Statius Primus, since he has not been appointed heir, and it would be of no benefit to him whatever if he were charged with the payment of a legacy, or if the freedman of the deceased was entrusted to his care by testamentary disposition; for he will remain a slave for all time, if he should not be manumitted.

Javolenus, Epistles, Book XII. In all matters having reference to the transfer of ownership, the concurrence and the intention of both contracting parties must exist; for in sales, donations, leases, or any other kind of contracts, unless both parties agree, anything which has been begun will have no effect.

Javolenus, Epistles, Book XIII. We should interpret as liberally as possible any favor of the Emperor which in fact proceeds from his Divine indulgence.

Javolenus, Epistles, Book XIII. A certain man bequeathed the usufruct of a third of his estate. The property of his heir was sold by his creditors, and the woman to whom the bequest was made received, in the place of the usufruct, the amount of the appraisement of the third part of the estate, and, through ignorance, the ordinary stipulation was omitted. I ask whether suit can be brought by the heir of the woman for the money which was given her, instead of the enjoyment of the usufruct, and if so, what kind of a suit? I answered that an action in factum should be granted.

Javolenus, Epistles, Book XIII. Ad Dig. 24,1,50 pr.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 365, Note 5.Where a woman buys a slave for twenty aurei, and her husband pays five to the vendor at the time of the purchase, if a divorce takes place, he can certainly recover this sum. It makes no difference whether the slave has become deteriorated in value, or even if he should be dead, the husband will still be entitled to demand the five aurei; for the question arises, as to whether the woman has become enriched by the property of her husband, at the time when the question as to the return of the dowry arose. She is, in this instance, understood to have been pecuniarily benefited by having been released by the intervention of her husband from liability for a debt, which she would still have owed, if her husband had not paid the money. Nor does it make any difference for what reason the woman owed the money, that is to say, whether it was borrowed, or whether she owed it on account of some purchase. 1Ad Dig. 24,1,50,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 365, Note 14.Where the woman did not buy the slave, but received the money from her husband in order to buy him, then, in case the slave should die, or become depreciated in value, the loss must be borne by her husband, because, as she would not have purchased the slave if she had not received the money from her husband, he who gave it must bear the loss, provided the slave died; nor is the woman considered to have become enriched who was not released by her creditor, and is not in possession of what she purchased with her husband’s money.

The Same, Epistles, Book XIII. An estate was left to Mævius if he paid two hundred aurei to Callimacus, who could not take anything under a will, and the legatee was, nevertheless, obliged to comply with the condition and to pay the two hundred aurei, in order to become entitled to the land which was devised to him, even though he did not transfer the ownership of the said sum to the person who received it. For what difference does it make whether anyone is directed to pay the money to such a person, or to deposit it in some place, or to throw it into the sea? Money cannot come into the hands of an individual of this kind under the terms of a will, but he can acquire it as a donation mortis causa.

Javolenus, Epistles, Book XIII. But where the owner of the slave paid the money, he cannot recover it from him for whom he became surety, but he can do so from the person to whom he paid it, since a slave cannot become liable as surety. Hence it follows that he cannot recover it from him for whom he became surety, as he himself is liable for the debt, and will not be released by the payment of money due under an obligation for which the slave was not responsible.

The Same, Epistles, Book XIV. Where an estate is left to anyone on condition of his paying ten aurei, the devisee cannot obtain any portion of the land without paying the entire amount. The case, however, is different where the identical property is left to two persons under the same condition, for in this instance, under the terms of the will, the condition imposed upon the different parties may appear to have been divided among them separately, and therefore they can, as individuals, comply with it in proportion to their respective shares, and receive the legacy. For although the entire sum, on the payment of which the legacy is dependent, seems to be divided by the enumeration of the different persons, the condition cannot be divided where some accidental occurrence takes place, in the case where the legacy is left to one person conditionally, and the entire number of those who are substituted for the legatee should be considered as constituting but one individual.

The Same, Epistles, Book XIV. Anything that your slave obtains possession of by violence, without your knowledge, you do not possess, because he who is under your control cannot acquire corporeal possession if you are not aware of it; but he can acquire legal possession, as, for instance, he possesses what comes into his hands as part of his peculium. For when a master is said to possess by his slave, there is an excellent reason for this, because what is held by the slave actually, and for a good reason belongs to his peculium, and the peculium which a slave cannot possess as a citizen, but holds naturally, his master is considered to possess. Anything, however, which the slave acquires by illegal acts, is not possessed by the master, because it is not included in the peculium of the slave.

Javolenus, Epistles, Book XIV. Where a slave, whom his master has considered as abandoned by him, stipulates for something, his act is void; because anyone who looks upon property as abandoned rejects it altogether, and cannot make use of the services of anyone whom he is unwilling shall belong to him. If, however, he has been seized by another, he can acquire for his benefit by means of a stipulation, for this is a kind of donation. A great difference exists between a slave forming a part of an estate and one who is considered as abandoned; for one of them is retained by hereditary right, and he cannot be considered as abandoned who is subject to the entire right of inheritance, while the other having been intentionally abandoned by his master, cannot be held to be available for the use of him by whom he was rejected.