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.