Labeo, Epitomes of Probabilities by Paulus. Where no water has yet appeared, no right of way to it, nor any canal for the conduct of the same can be established. Paulus says, I think, that this is not true, by any means; because a grant can be made permitting you to look for water, and, if it should be found to convey it.

Labeo, Epitomes of the Probabilities of Paulus, Book I. If you have made a contract for the transportation of slaves, freight is not due to you for a slave who died on the ship. Paulus says that, in fact, the question is what was agreed upon, whether freight was to be paid for those who were loaded on the ship, or only for those who were carried to their destination? And if this cannot be established, it will be enough for the master of the ship to prove that the slave was placed on board. 1If you hired a ship on condition that your merchandise was to be transported by her, and the master of the ship, without being compelled by necessity, placed your property on an inferior vessel, being aware that you did not wish this to be done; and your merchandise was lost, together with the ship in which it was last transported, you will be entitled to an action on the contract of leasing and hiring against the master of the first ship. Paulus, on the other hand, says that this is not true, provided both ships were lost on the voyage, since it occurred without the malice or negligence of the sailors. The rule is the same if the first master, having been detained by public authority, was prevented from sailing with your merchandise. This rule is also applicable if he entered into a contract with you under the condition that he would pay you a certain penalty if he did not, by a day agreed upon, land your goods in a place to which he had agreed to transport them, and he was not to blame if he did not wait; even though the penalty was remitted to him. We must observe the same rule in a similar imaginary case, where it is proved that the master, having been prevented by illness, was unable to sail, if his ship became unfit for navigation without any malicious intent or negligence of his. 2If you hire a ship capable of transporting two thousand jars and place jars on board, you are liable for the freight of two thousand jars. Paulus says that the fact is, if you hire the entire capacity of the ship, the freight for two thousand jars will be due, but if the freight was agreed upon according to the number of jars placed on board, the contrary rule will apply; for you owe for the transportation of as many jars as you placed on board.

Labeo, Probabilities, Book I. Where it is stated in a contract that the rent of a house shall belong to the purchaser; whatever the said house is rented for should be paid to the purchaser. Paulus says that this is not altogether true, for if you rent an entire house to one tenant for a certain sum, and the tenant sublets it for a larger amount, and, in selling the house, you state that the rent is to be paid to the purchaser, that only is included which the tenant owes you for the entire house. 1If you sold a tract of land in which you have a burial-place and do not expressly except it, you will have no security on this account. Paulus says that this opinion is, by no means, just, provided a public highway runs by the side of the burial-place. 2If, where a house is sold, lodgings in the same are reserved for the occupants under the terms of the sale, such a reservation is properly made with reference to all the occupants of said house, with the exception of the owner. Paulus, however, says that if you had given free lodgings to anyone in the house which you sold, and you should make the reservation in such a way that the occupants, or any one of them, will have rent to pay at a certain time, you will not properly provide for this; for it is necessary to make an express reservation with reference to them. Therefore, the purchaser can, with impunity, prevent the occupants from lodging in the house.

Labeo, Probabilities, Book I. If you make a contract for digging a canal, and complete it, and, before it is accepted, it is destroyed by accident, the risk will be yours. Paulus says that, even if the accident occurred through some fault of the ground, the party hiring the work to be done must be responsible; but if it happened because the work was defective, you must bear the loss.

Labeo, Probabilities of the Epitomes, by Paulus, Book I. If a house which you have a right to sell under the terms of a contract of pledge is consumed by fire, and is afterwards rebuilt by your debtor, you will have the right with reference to the new building.

The Same, Epitomes of Probabilities, by Paulus, Book I. Where a house is bequeathed to anyone, he will be entitled to all the buildings situated on the land belonging to said house. Paulus: This rule, however, does not apply where the owner possessed two adjoining houses, and a room of one of them was destined for the use of the other, and employed for this purpose; for, under these circumstances, the said room will cease to be accessory to the building to which it is attached, and will become accessory to the other.

Labeo, Abridgment of Probabilities by Paulus, Book I. Paulus: If a son under paternal control, who had a wife from whom he had received a dowry, should afterwards become the head of a household, and, as is customary, bequeath the dowry to her, the legacy will still be due, even though he did not become the heir of his father.

Labeo, Abridgment of Probabilities by Paulus, Book I. If you wish to devise to anyone a tract of land with its equipment it makes no difference what form you use, whether you devise the land with its equipment or the land and its equipment, or the land furnished with its equipment. Paulus: I indeed am of the contrary opinion, for there is this difference between legacies, namely, if the testator who made the devise should employ the following form, “I leave the land with its equipment,” and the land should be alienated, the devise will be of no force or effect; but if he used either of the other forms it will be valid.

Labeo, Probabilities, Book I. If you purchase a ship with its equipment, the boat belonging to it should be delivered to you. Paulus: By no means; for a ship’s boat is not part of its equipment, as the boat differs from it in size, but not in kind. It is necessary for the equipment of anything to be of a different description, no matter what it may be. This opinion is adopted by Pomponius, in the Seventh Book of the Epistles.

Labeo, Epitomes of Probabilities, By Paulus. If you have accused the freedman of your father of a capital crime, and your father has manumitted him, prætorian possession of the estate of the freedman cannot be granted to you under the Edict of the Prætor. Paulus: The contrary rule will apply if you should bring such an accusation against a slave who afterwards becomes the property of your father, and the latter subsequently manumits him.

Labeo, Epitomes of Probabilities, by Paulus, Book I. If you desire to permit one of your slaves to be liberated from servitude within a certain time, it makes no difference whether you make this provision under the condition that he “shall serve,” or “render his services for the term of three years, in order to become free.” 1Paulus: If anyone is ordered to be free if he promises to pay ten aurei to the heir, although a promise of this kind will be of no effect, he will, nevertheless, be liberated by making it.

The Same, Probabilities, Book II. You can bring an action on deposit against anyone who refuses to return your deposit on any other terms than that you pay him money, even though he may be willing to return it, on this condition, without delay and uninjured.

The Same, Probabilities, Book II. Where the right of succession to an estate is sold with the exception of a tract of land belonging thereto, and then the vendor acquires something on account of said tract of land, he must surrender it to the purchaser of the right of succession. Paulus says that, in an instance of this kind, inquiry must always be made as to the intention of the parties. If, however, this cannot be ascertained, the vendor must transfer the property which has been acquired by him in this way to the purchaser; for it appears to have come into his hands on account of the succession, and not otherwise; just as if in disposing of the succession he had not excepted the said tract of land.

The Same, Probabilities, Book II. Where a slave whom you have sold breaks a leg in doing something by your order, the risk is not yours, if you directed him to perform some act which he was accustomed to perform before the sale, and if you ordered him to do something which you would have ordered him to do, even if he had not been sold. Paulus says that this opinion is by no means correct; for if the slave had been accustomed to perform some dangerous task before the sale, it will be held that you were to blame for this; as, for instance, if you had been accustomed to compel your slave to go down into a vault, or into a sewer. The same rule of law applies if you were accustomed to order him to do something which the wise and diligent head of a family would not order his slave to do. What if this should be made the ground of an exception? He can, nevertheless, direct the slave to perform some new task which he would not have ordered him to perform if he had not been sold; for example, if he should order him to go to the home of the purchaser, who lived in a distant place, for certainly this would not be at your risk. Therefore, the entire matter merely has reference to the fraud and negligence of the vendor. 1Where it is stated in the contract that there were eighty casks buried in the ground, which were accessory to the land, and there are more than this; the vendor must give to the purchaser the above mentioned number, making his selection from all the others as he wishes, provided he delivers such as are sound. Where there are only eighty of them, they belong to the purchaser, just as they are; and the vendor will not be obliged to pay him anything for those that are not perfect.

Labeo, Epitomes of Probabilities, by Paulus, Book II. If a wife should purchase a slave with money given to her by her husband, or by someone who is under his control, and after the slave becomes her property, she should deliver him to her husband as a donation, the delivery will be valid, even though this is done with the same intention with which other donations are made, and no action for recovery can be granted her on this account.

Labeo, Epitomes of Probabilities by Paulus, Book II. If anyone, knowing that property is being stolen from him, does not prevent this from being done, he cannot bring an action for theft. Paulus: The contrary is certainly true. For if anyone knows that property has been stolen from him, and keeps quiet because he cannot prevent it, he can bring an action for theft. If, however, he could have prevented it, but did not do so, he can still bring an action for theft. In this way patrons are accustomed to commit thefts against their freedmen, and also anyone who is entitled to such respect or reverence that it prevents him from being resisted by another in his presence, is accustomed to commit a theft.

The Same, Probabilities, Book III. Where anyone bequeaths a slave to his wife, and orders him to be free in case she marries again, the slave will become free under this condition if she should marry a second time.

Labeo, Epitomes of Probabilities by Paulus, Book III. If your tenant has been forcibly ejected, you can proceed under the interdict Unde vi. The same rule should be adopted if the lessee of your house is forcibly ejected. Paulus: This also applies to a sub-tenant, or a sub-lessee.

Labeo, Epitomes of Probabilities by Paulus, Book IV. If you have not harvested the crops on a tract of land belonging to another of which you are merely in possession, you are not obliged to deliver anything produced by said land. Paulus, on the other hand, asks whether the crops become the property of the possessor because he gathered them on his own account? We must understand the harvesting of crops to mean not only where they are entirely gathered, but where this has begun and has proceeded to the extent that the crops have ceased to be supported by the land; as, for instance, where olives or grapes have been gathered, but no wine or oil has been made by anyone; for in this case, he who has gathered the crops is considered, from that time, to have obtained them.

Labeo, Epitomes of Probabilities by Paulus, Book IV. Just as urban and rustic slaves are distinguished, not by the place in which they are, but by the nature of their employment, so, likewise, urban provisions and household goods should be classified according to their use in a city, and not from the mere fact of their being situated there, or elsewhere; and it makes a great deal of difference whether provisions and household goods which are in the city are bequeathed, or where they are bequeathed as belonging to the city.

Labeo, Epitomes of Probabilities by Paulus, Book IV. If anything captured in war forms part of the booty, it does not return by the right of postliminium. Paulus: But if a prisoner taken in war flees to his home, after peace has been declared, and then the war having been renewed he again is captured, he returns by the right of postliminium, to which he was entitled when taken during the first war; provided that it was not agreed in the treaty of peace that captives should be returned.

Labeo, Epitomes of Probabilities by Paulus, Book IV. A penalty is a fine, and a fine is a penalty. Paulus: Both of these statements are false; for the difference between these things is apparent from the fact that an appeal cannot be taken from a penalty, for where anyone is convicted of an offence, the penalty for it is fixed, and must be paid at once; but an appeal can be taken from a fine, for it is not due unless an appeal is not taken, or the appellant loses his case; and it is the same as if the judge had passed upon it who was authorized to do so. Hence, the difference between these things becomes apparent, because certain penalties are prescribed for certain illegal acts; but this is not the case with fines, as the judge has power to impose any fine he pleases, unless the amount which he may impose is fixed by law.

Labeo, Epitomes of Probabilities by Paulus, Book V. If a penalty for failure to pay money transported by sea is promised, as is customary, even though on the first day when it is payable no one should be living who owed the said money, still, the penalty can be exacted, just as if there was an heir to the debtor.

Labeo, Probabilities, Book V. If anything which the ward does would tend to release his guardian from liability to him, the guardian cannot legally consent for him to do it.

Labeo, Epitomes of Probabilities by Paulus, Book V. Property which has been stolen cannot be acquired by usucaption before it has again come under the control of the owner. Paulus: Perhaps the contrary opinion is true; for if you should steal property which you have given to me in pledge, it becomes stolen goods, but it can be acquired by usucaption as soon as it again comes under my control.

Labeo, Epitomes of Probabilities, by Paulus, Book V. If I should make a release to you, I will not, for that reason, be freed from liability, so far as you are concerned. Paulus: But when a hiring, a lease, a purchase, or a sale has been made under an agreement, and the property has not yet been delivered, even though only one of the contracting parties may have consented to a release, all of them, however, will be discharged.

The Same, Epitomes of Probabilities by Paulus, Book VI. If you bring suit against me to recover a slave, and he dies after issue is joined, the profits must be estimated during the time that he lived. Paulus says, “I think that this is true only where the slave had not yet become so ill as to render his services worthless; for even if he had continued to live in that state of ill health, it would not be proper for the profits to be estimated during that time”.

Labeo, Epitomes of Probabilities by Paulus, Book VI. Where the promise of a dowry is involved, judgment should be rendered against the party who made it, without reference to his pecuniary resources. Paulus says that this is always true with reference to a stranger, but where a son-in-law claims the promised dowry from his father-in-law, while the connection between them exists, judgment will be rendered against the father-in-law in accordance with the amount which he is able to pay. If he brings an action after the marriage has been dissolved, I think that the amount to be paid will depend upon the circumstances and personal character of the parties. For what if the father-in-law had imposed upon his son-in-law by giving him reason to expect a dowry, when he knew that he was unable to furnish it, and had done this for the purpose of deceiving his son-in-law?

Labeo, Epitomes of Probabilities, by Paulus. If I send a letter to you, it will not become yours until it has been delivered to you. Paulus: I am of the opposite opinion, for if you send your secretary to me, and I send you a letter by way of answer, the letter will become yours as soon as I have delivered it to your secretary. The same thing happens in the case of a letter which I send to you merely as a favor; for instance, if you have asked me to recommend you to someone, and I send you a letter for that purpose. 1If an island in a river belongs to you, none of it is public property. Paulus: The contrary is true, for in this kind of islands, the banks of a river and the shores of the sea are, to a certain extent, public property; and the rule of law is the same with reference to a field which adjoins the bank, or the shore. 2If an island is formed in a public stream, which is near your property, it will belong to you. Paulus: Let us see if this is not false with reference to an island which is not contiguous to the channel of the river, but is suspended by branches, or some other light material, above the stream, so that the soil does not reach it, and the island can change its position. An island of this kind is, to a certain extent, public property, and belongs to the river itself. 3Paulus: If an island which is formed in the river becomes yours, and another island is afterwards formed between the first one and the opposite bank, the measure will be taken from your island, and not from your land on account of which the island became your property; for what difference does it make what the character of the land may be, on account of whose situation the ownership of the last island is claimed? 4Labeo, in the same Book, says that if anything is formed or built in a public place, it becomes public, and that an island which is formed in a public stream should also be considered public property.

Labeo, Epitomes of Probabilities by Paulus, Book III. Paulus: If anyone places a statue in a city with the intention that it shall belong to the city, and afterwards desires to claim it in court, he can be barred by an exception in factum.

Ad Dig. 46,3,91Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 354, Note 5.Labeo, Epitomes of Probabilities by Paulus, Book VI. If your debtor refuses to be released by you, and he is present, he cannot be discharged by you against his will. Paulus: Further, you can release your debtor, if he is present, even without his consent, by substituting for him someone with whom you stipulate for payment of the debt with the intention of making a novation; and even if you do not give him a release, still, so far as you are concerned, the indebtedness is immediately extinguished, since, if you attempt to collect it, you will be barred by an exception on the ground of fraud.

The Same, Epitomes of Probabilities by Paulus, Book VI. If you should return under the right of postliminium, you have not been able to acquire any property by usucaption while you were in the power of the enemy. Paulus: But if your slave should have obtained anything as peculium, while you were in that condition, you can acquire it by usucaption during that time, as we are accustomed to acquire by usucaption property of this kind, even without our knowledge; and in this manner an estate can be increased by a slave forming part of the same, although a posthumous child may not yet have been born, or the estate have been entered upon.

Ad Dig. 22,3,28Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 113, Note 9.Labeo, Epitomes of Probabilities, by Paulus, Book VII. Where it is the duty of an arbiter to decide a case, should he inquire whether a memorandum of the labor performed exists, or whether anyone remembers that the labor has been performed? Paulus says that when inquiry is made in a case of arbitration, as to whether a memorandum of the labor performed is in existence or not, it ought not to be asked whether anyone remembers the time, or under what consul the work was done, but whether it can be proved in any way whatsoever when it was done. And this should be accomplished, as the Greeks are accustomed to state, in a general way, for it cannot be retained in the memory that the work has been done; for example, within a certain year, since, in the meantime, no one will probably remember under what consuls it was performed. But where the opinion of all persons is that they did not hear of the work being done, or see it, or learn of it from any who might have seen it, or heard of it, and, no matter how far back one may go, no memorandum of the work performed can be found; this will be sufficient.

The Same, Epitomes of Probabilities by Paulus, Book VIII. If anything which our enemies have taken from us is of such a nature that it can return by the law of postliminium, as soon as it escapes from the enemy for the purpose of returning to us and comes within the boundaries of our empire, it should be considered to have returned under the law of postliminium. Paulus: But when a slave of one of our citizens, after having been captured by the enemy, escapes from them, and remains at Rome without either being under the control of his master, or in the service of anyone else, it should be held that he has not yet returned under the law of postliminium.