Corpus iurisprudentiae Romanae

Repertorium zu den Quellen des römischen Rechts

Digesta Iustiniani Augusti

Recognovit Mommsen (1870) et retractavit Krüger (1968)
Convertit in Anglica lingua Scott (1932)
Lab.post. Iav.
Lab. Posteriorum a Iavoleno epitomatorum lib.Labeonis Posteriorum a Iavoleno epitomatorum libri

Posteriorum a Iavoleno epitomatorum libri

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Ex libro I

Dig. 28,1,2Labeo libro primo posteriorum a Iavoleno epitomatorum. In eo qui testatur eius temporis, quo testamentum facit, integritas mentis, non corporis sanitas exigenda est.

Labeo, Abridgments of Last Works by Javolenus, Book I. Soundness of mind is required of a testator at the time that he makes a will, but bodily health is not necessary.

Dig. 28,6,9Labeo libro primo posteriorum a Iavoleno epitomatorum. Si pater filio impuberi eosdem quos sibi et te unum praeterea heredem instituit, bonorum filii te dimidium, ceteros patris heredes communiter dimidium ita habere, ut unus semis apud te maneat, alterius semissis pro his partibus inter heredes paternos divisio fiat, quibus ex partibus hereditatem paternam haberent.

Labeo, Abridgments of the Last Works of Javolenus, Book I. Where a father substituted for his son under the age of puberty the same persons whom he appointed his own heirs, and you in addition, you will be entitled to half of the estate of the son, and the other heirs of the father will be entitled to the other half, so that the undivided half will belong to you, and a division of the remaining half will be made in proportion to the shares of the estate of their father to which the others would have been entitled by inheritance.

Ex libro II

Dig. 28,7,20Labeo libro secundo posteriorum a Iavoleno epitomatorum. Mulier, quae viro suo ex dote promissam pecuniam debebat, virum heredem ita instituerat, si eam pecuniam, quam doti promisisset, neque petisset neque exegisset. puto, si vir denuntiasset ceteris heredibus per se non stare, quo minus acceptum faceret id quod ex dote sibi deberetur, statim eum heredem futurum. quod si solus heres institutus esset in tali condicione, nihilo minus puto statim eum heredem futurum, quia ἀδύνατος condicio pro non scripta accipienda est. 1Si quis hereditarium servum iussus est manumittere et heres esse, quamvis, si manumiserit, nihil agat, tamen heres erit: verum est enim eum manumississe: sed post aditionem libertas servo data secundum voluntatem testatoris convalescit. 2Si quis te heredem ita instituit, si se heredem instituisses aut quid sibi legasses, nihil interest, quo gradu is a te heres institutus vel quid ei legatum sit, dummodo aliquo gradu id te fecisse probes.

Labeo, Epitomes of the Last Works of Javolenus, Book II. Ad Dig. 28,7,20 pr.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 554, Note 8.A woman who was indebted to her husband for money promised to him by way of dowry, appointed him her heir, “Under the condition that he would not claim or exact the money which she had promised as dowry”. I think that if the husband should notify the other heirs that he is not unwilling to give a release for what was due to him by way of dowry, he will immediately become the heir. If, however, he should be appointed heir under such a condition, I hold that he will, nevertheless, forthwith become the heir, because performance of the condition is impossible, and any such condition must be considered as not having been imposed. 1If anyone should be ordered to manumit a slave belonging to an estate, and to become the heir, even though he should manumit him, and perform an act which is void, he will, nevertheless, become the heir; for while it is true that he manumitted the slave, the freedom granted to the latter after the estate was entered upon will become valid in accordance with the wish of the testator. 2If anyone should appoint you an heir under the condition that you appoint him one, or bequeath something to him, it makes no difference in what degree he has been appointed an heir by you, or what has been left to him, provided you can prove that you have done this in any degree whatsoever.

Dig. 32,29Labeo libro secundo posteriorum a Iavoleno epitomatorum. Qui concubinam habebat, ei vestem prioris concubinae utendam dederat, deinde ita legavit: ‘vestem, quae eius causa empta parata esset’. Cascellius Trebatius negant ei deberi prioris concubinae causa parata, quia alia condicio esset in uxore. Labeo id non probat, quia in eiusmodi legato non ius uxorium sequendum, sed verborum interpretatio esset facienda idemque vel in filia vel in qualibet alia persona iuris esset. Labeonis sententia vera est. 1Cum ita legatum esset, ut Titia uxor mea tantandem partem habeat quantulam unus heres, si non aequales partes essent heredum, Quintus Mucius et Gallus putabant maximam partem legatam esse, quia in maiore minor quoque inesset, Servius Ofilius minimam, quia cum heres dare damnatus esset, in potestate eius esset, quam partem daret. Labeo hoc probat idque verum est. 2Cum ita legatum esset: ‘quanta pecunia ex hereditate Titii ad me pervenit, tantam pecuniam heres meus Seiae dato’, id legatum putat Labeo, quod acceptum in tabulis suis ex ea hereditate testator rettulisset: ceterum negat cavendum heredi a legatario, si quid forte postea eius hereditatis nomine heres damnatus esset. ego contra puto, quia non potest videri pervenisse ad heredem, quod eius hereditatis nomine praestaturus esset: idem Alfenus Varus Servio placuisse scribit, quod et verum est. 3Si heres tibi servo generaliter legato Stichum tradiderit isque a te evictus fuisset, posse te ex testamento agere Labeo scribit, quia non videtur heres dedisse, quod ita dederat, ut habere non possis: et hoc verum puto. sed hoc amplius ait debere te, priusquam iudicium accipiatur, denuntiare heredi: nam si aliter feceris, agenti ex testamento opponetur tibi doli mali exceptio. 4‘Si Stichus et Dama servi mei in potestate mea erunt cum moriar, tum Stichus et Dama liberi sunto et fundum illum sibi habento’. si alterum ex his post testamentum factum dominus alienasset vel manumississet, neutrum liberum futurum Labeo putat: sed Tubero eum, qui remansisset in potestate, liberum futurum et legatum habiturum putat. Tuberonis sententiam voluntati defuncti magis puto convenire.

Labeo, On the Last Epitomes of Javolenus. Where a man had a concubine, and gave her the privilege of using the clothes of a former concubine, and then made a bequest as follows, “I leave her such-and-such clothing which I have purchased, and intended for her,” Cascellius and Trebatius deny that she is entitled to the clothing which was obtained for the first concubine, because a different rule prevails in the case of a wife. Labeo does not adopt this opinion, because, while it is true that in the case of a legacy of this kind the law governing a wife does not apply, the interpretation of the words used by the testator must be considered. The same rule applies to the case of a daughter, or to any other person whatsoever. The opinion of Labeo is correct. 1Where a legacy was bequeathed as follows, “I desire my wife, Titia, to have a share of my estate equal to the smallest one which any one of my heirs may have,” and the shares of the heirs were unequal, Quintus Mucius and Gallus held that the largest share was bequeathed, for the reason that the smaller share is included in the larger. Servius and Ofilius contended that the smallest share was meant, because when the heir was charged with the payment of the legacy, he had the power to give whatever share he chose. Labeo approves this opinion, and it is correct. 2Where a legacy was bequeathed as follows, “Let my heir pay to Seia a sum of money equal to that which I obtained from the estate of Titius,” Labeo thinks that the legacy includes what the testator had entered in his accounts as having been derived from the said estate; but he denies that security should be furnished to the heir by the legatee to protect him, in case the heir should afterwards be required to pay anything on account of the said estate. I, however, hold the contrary opinion, because it cannot be maintained that what the heir will have to pay on account of said estate has actually come into his hands. Alfenus Varus states that this was the opinion of Servius, and it is correct. 3Where a slave has been left to you in general terms, and the heir delivers Stichus to you, and he is evicted, Labeo says that you can proceed against him under the will, because the heir is not considered to have given you any slave, since you were unable to retain the one he gave you. I think that this is correct. But he also says that you should notify the heir of the eviction before instituting proceedings, for, if you did otherwise, an exception on the ground of bad faith could be filed against you in case you brought an action under the will. 4“If my slaves Stichus and Damus are in my possession at the time of my death, let them be free, and let them have for themselves such-and-such a tract of land.” Labeo thinks that if either of said slaves should be alienated or manumitted by their owner, after the will was executed, neither of them would become free. Tubero, however, thinks that the one who remained in the hands of the testator would be free, and be entitled to the legacy. I think that the opinion of Tubero is the one more in conformity with the intention of the deceased.

Dig. 32,30Labeo libro secundo posteriorum a Iavoleno epitomatorum. Qui quattuor pocula oleaginea habebat, ita legavit: pocula oleaginea paria duo. respondi unum par legatum esse, quia non ita esset: bina paria neque ita: poculorum paria duo: idem et Trebatius. 1Qui hortos publicos a re publica conductos habebat, eorum hortorum fructus usque ad lustrum, quo conducti essent, Aufidio legaverat et heredem eam conductionem eorum hortorum ei dare damnaverat sinereque uti eum et frui. respondi heredem teneri sinere frui: hoc amplius heredem mercedem quoque hortorum rei publicae praestaturum. 2Cum testamento scriptum esset: ‘Sticho servo meo heres quinque dato et, si Stichus heredi meo biennium servierit, liber esto’, post biennium legatum deberi existimo, quia in id tempus et libertas et legatum referri deberet: quod et Trebatius respondit. 3Si fundum mihi vendere certo pretio damnatus es, nullum fructum eius rei ea venditione excipere tibi liberum erit, quia id pretium ad totam causam fundi pertinet. 4Qui fundum mandatu meo in societate mihi et sibi emerat, deinde eum finibus diviserat et priusquam mihi traderet, ita eum tibi legaverat ‘fundum meum illi do’. negavi amplius partem deberi, quia verisimile non esset ita testatum esse patrem familias, ut mandati heres eius damnaretur. 5‘Uxori meae, dum cum filio meo Capuae erit, heres meus ducenta dato’: filius a matre migravit. si ambo Capuae habitassent, legatum matri debitu iri putavi, quamvis una non habitassent: sin autem in aliud municipium transissent, unius anni tantummodo debitu iri, quo una habitassent quantolibet tempore: Trebatius ait. videamus, an his verbis ‘dum cum filio Capuae erit’ non condicio significetur, sed ea scriptura pro supervacuo debet haberi: quod non probo. sin autem per mulierem mora non est, quo minus cum filio habitet, legata ei deberi. 6Si aedes alienas ut dares damnatus sis neque eas ulla condicione emere possis, aestimare iudicem oportere Ateius scribit, quanti aedes sint, ut pretio soluto heres liberetur. idemque iuris est et si potuisses emere, non emeres.

The Same, On the Last Epitomes of Javolenus, Book II. A testator who had four oil jars made the following bequest: “I bequeath two oil jars which are similar.” I gave it as my opinion that only a pair of jars was bequeathed, as the expression, “Two pairs of jars,” is not the same as “Two similar jars.” Trebatius is of the same opinion. 1Where a testator rented certain public gardens from the State, and bequeathed to Aufidius the produce of said gardens until the expiration of the lease under which they were rented, and charged his heir to pay the rent of said gardens and permit him to enjoy the same, I held that the heir was obliged to permit him to enjoy them, and moreover, that he would also be obliged to pay the rent of said gardens to the State. 2Where it was inserted into a will, “Let my heir pay five aurei to Stichus, my slave, and if Stichus should serve my heir as a slave for the term of two years, let him be free,” I think that the legacy will be due after the lapse of two years, for both it and the grant of freedom should be referred to that time. This was also the opinion of Trebatius. 3If you are charged to sell me a tract of land for a specified price, you will not be at liberty under the terms of said sale to reserve any of the crops of said land, because the price refers to the entire premises. 4Where I directed a party to purchase a tract of land for himself and me, to be held in partnership, and he then divided said land into two portions by boundaries, and, before delivering it to me, he devised it as follows, “I give to So-and-So my tract of land,” I denied that more than half the land was due, because it would not be probable that the testator, when he made the devise, intended that his heir should be charged with the mandate. 5“Let my heir pay two hundred aurei to my wife, while she remains with my son at Capua.” The son left his mother. I was of the opinion that as long as both parties resided at Capua, the legacy would be due to the mother, even though they did not live together. If, however, they should move to some other town, Trebatius says that the legacy would only be due for one year according to the time during which they lived together. Let us see whether a condition was not implied by the words, “While she remains with my son at Capua,” but that they shall be considered as superfluous. I do not adopt this opinion. Still, the legacy should be paid to her, provided it is not her fault if she did not reside with her son. 6If you are charged to deliver a house belonging to another, and you cannot purchase said house on any terms whatsoever, Attius says that the court must make an appraisement of its value, so that the heir may be discharged after the amount has been paid. The same rule applies if you could have bought the house and did not do so.

Dig. 33,1,17Labeo libro secundo posteriorum a Iavoleno epitomatorum. Legatum ita est: ‘Attiae, donec nubat, quinquaginta damnas esto heres meus dare’ neque adscriptum est ‘in annos singulos’. Labeo Trebatius praesens legatum deberi putat, sed rectius dicetur id legatum in annos singulos deberi. 1‘Vini Falerni, quod domi nasceretur, quotannis in annos singulos binos culeos heres meus Attio dato’. etiam pro eo anno, quo nihil vini natum est, deberi duos culeos, si modo ex vindemia ceterorum annorum dari possit.

Labeo, On the Last Epitomes of Javolenus, Book II. A legacy was bequeathed as follows, “Let my heir give to Attia fifty aurei until she marries.” It was not stated that the money was to be paid annually. Labeo and Trebatius think that the entire sum is immediately due. It is, however, more equitable to hold that the legacy is payable annually. 1“Let my heir give to Attius, every year, two measures of Falernian wine which are to be taken from my estate.” It was held that the two measures of wine should be furnished even for a year when no wine was made, provided they could be obtained from the vintage of former years.

Dig. 33,2,31Labeo libro secundo posteriorum a Iavoleno epitomatorum. Is qui fundum tecum communem habebat usum fructum fundi uxori legaverat: post mortem eius tecum heres arbitrum communi dividundo petierat. Blaesus ait Trebatium respondisse, si arbiter certis regionibus fundum divisisset, eius partis, quae tibi optigerit, usum fructum mulieri nulla ex parte deberi, sed eius, quod heredi optigisset, totius usum fructum eam habituram. ego hoc falsum puto: nam cum ante arbitrum communi dividundo coniunctus pro indiviso ex parte dimidia totius fundi usus fructus mulieris fuisset, non potuisse arbitrum inter alios iudicando alterius ius mutare: quod et receptum est.

Labeo, On the Last Epitomes of Javolenas, Book II. Where anyone has a tract of land in common with you, and leaves the usufruct of said land to his wife, and, after his death, his heir applies to the court for partition of the land; Blæsus says that it was held by Trebatius that, if the judge should divide the land into different portions, the usufruct of the part allotted to you would not, under any circumstances, be due to the woman, but she would be entitled to the usufruct of the entire share assigned to the heir. I think this opinion is incorrect, for if, before the judgment was rendered, the woman was entitled to the usufruct of the undivided half of the entire tract of land, the judge could not, in deciding between the parties, prejudice the rights of the third. This last decision is the one adopted.

Dig. 33,4,6Labeo libro secundo posteriorum a Iavoleno epitomatorum. Cum scriptum esset: ‘quae pecunia propter uxorem meam ad me venit quinquaginta, tantundem pro ea dote heres meus dato’, quamvis quadraginta dotis fuissent, tamen quinquaginta debere Alfenus Varus Servium respondisse scribit, quia proposita summa quinquaginta adiecta sit. 1Item ei, quae dotem nullam habebat, vir sic legaverat: ‘quanta pecunia dotis nomine’ et reliqua, ‘pro ea quinquaginta heres dato’. deberi ei legatum Ofilius Cascellius, item et Servii auditores rettulerunt: perinde habendum esse ac si servus alicui mortuus aut pro eo centum legata essent. quod verum est, quia his verbis non dos ipsa, sed pro dote pecunia legata videtur.

Labeo, On the Last Epitomes by Javolenus, Book II. Where the following was inserted into a will, “Let my heir give to my wife the sum of fifty aurei, which came into my hands through her and as much more in lieu of her dowry,” Alfenus Verus says that Servius was of the opinion that, although the dowry was only composed of forty aurei, fifty were, nevertheless, due, because an additional sum of fifty was added. 1Likewise, where a husband made a bequest to his wife, who had not brought him any dowry, in the following terms, “Let my heir give the sum of fifty aurei, instead of the money which I received from my wife by way of dowry,” Ofilius, Cascellius, and the pupils of Servius assert that the legacy is due to her; and hence it must be considered similar to the case where a slave, who is dead, has been bequeathed to someone, or a hundred aurei has been left in his stead. This is correct, because by these words not the dowry itself, but money in lieu of it is held to have been bequeathed.

Dig. 33,5,20Labeo libro secundo posteriorum a Iavoleno epitomatorum. Apud Aufidium libro primo rescriptum est, cum ita legatum est: ‘vestimenta quae volet triclinaria sumito sibique habeto’, si is dixisset quae vellet, deinde, antequam ea sumeret, alia se velle dixisset, mutare voluntatem eum non posse, ut alia sumeret, quia omne ius legati prima testatione, qua sumere se dixisset, consumpsit, quoniam res continuo eius fit, simul ac si dixerit eam sumere.

Labeo, Epitomes of the Last Works of Javolenus, Book II. It is stated in the First Book of Aufidius, that when a bequest was made as follows, “Let him take and have for himself any coverings for table-couches which he may wish,” if he mentioned those he wanted, and then, before he took them, should say that he wanted others, he cannot change his mind and take the others; because he had disposed of his entire right of selection under the legacy by his first statement, in which he indicated those which he would take, as the articles become his immediately, just as if he had said that he would take them.

Dig. 33,8,22Labeo libro secundo posteriorum a Iavoleno epitomatorum. Dominus servum testamento manumiserat et ei peculium legaverat: is servus mille nummos domino debuerat et eos heredi solvit. respondi omnes eas res deberi orcino, si pecuniam orcinus quam debuerat solvisset. 1Dominus servum, qui cum eo vicarium communem habebat, testamento manumiserat et peculium ei legaverat, deinde ipsum vicarium, qui communis erat, nominatim et ipsi et libertae suae legaverat. respondi partem quartam libertae, reliquam partem quartam liberti futuram: quod et Trebatius.

Labeo, Last Epitomes by Javolenus, Book II. A master manumitted his slave by his will, and left him his peculium. The slave owed his master a thousand sesterces, and paid them to the heir. I rendered the opinion that all the property composing the peculium was due to the enfranchised slave, if he had paid the money which he owed. 1A master manumitted his slave, who held a sub-slave in common with him, left the former his peculium, and then bequeathed specifically the sub-slave himself, who was held in common by them, to him and to his freedwoman. I held that a fourth part of the slave would belong to the freedwoman, and that the remaining three-fourths would belong to the freedman; which is also the opinion of Trebatius.

Dig. 34,2,31Labeo libro secundo posteriorum a Iavoleno epitomatorum. Qui lancem maximam minorem minimam relinquebat, ita legaverat: ‘lancem minorem illi lego’. mediae magnitudinis videri legatam lancem responsum est, si non appareret, quam lancem ex his pater familias demonstrare voluisset.

Labeo, Epitomes of the Last Works of Javolenus, Book II. A certain man left a large dish, one of medium size, and one still smaller, as follows: “I bequeath to So-and-So my smaller dish.” It was held that the dish of medium size was bequeathed, if it did not appear which dish the testator intended to designate.

Dig. 36,4,14Labeo libro secundo posteriorum a Iavoleno epitomatorum. Quae legatorum servandorum causa in bonis est, in causa vescendi deminuet, si filia neptis proneptis uxorve esset nec nupta sit nec suum quicquam habeat.

Labeo, Epitomes of the Last Works of Javolenus, Book II. Where the daughter, granddaughter, great-granddaughter, or wife of the deceased, is not married, and has no property of her own, and has been placed in possession of the estate to insure the payment of legacies, she can use the property of said estate for her support.

Ex libro III

Dig. 36,2,30Labeo libro tertio posteriorum a Iavoleno epitomatorum. Quod pupillae legatum est ‘quandoque nupserit’, si ea minor quam viripotens nupserit, non ante ei legatum debebitur, quam viripotens esse coeperit, quia non potest videri nupta, quae virum pati non potest.

Labeo, Epitomes of the Last Works of Javolenus, Book III. Where a legacy is bequeathed to a female ward, to take effect when she marries, and she should marry before being nubile, she will not be entitled to the legacy before she reaches the marriageable age; because a girl cannot be considered to be married when she is incapable of cohabitation.

Ex libro IV

Dig. 8,1,19Labeo libro quarto posteriorum a Iavoleno epitomatorum. Ei fundo, quem quis vendat, servitutem imponi, et si non utilis sit, posse existimo: veluti si aquam alicui dedere ducere non expediret, nihilo minus constitui ea servitus possit: quaedam enim debere habere possumus, quamvis ea nobis utilia non sunt.

Labeo, Last Works, Abridged by Javolenus, Book IV. I think that where anyone sells land, a servitude can be imposed upon it, even if it is not useful to him; for example, where a party would have no interest in a water-course, such a servitude can nevertheless be created, as there are certain things which we can have, even though they are of no advantage to us.

Dig. 18,1,78Labeo libro quarto posteriorum a Iavoleno epitomatorum. Fistulas emptori accessuras in lege dictum erat: quaerebatur, an castellum, ex quo fistulis aqua duceretur, accederet. respondi apparere id actum esse, ut id quoque accederet, licet scriptura non continetur. 1Fundum ab eo emisti, cuius filii postea tutelam administras, nec vacuam accepisti possessionem. dixi tradere te tibi possessionem hoc modo posse, ut pupillus et familia eius decedat de fundo, tunc demum tu ingrediaris possessionem. 2Qui fundum ea lege emerat, ut soluta pecunia traderetur ei possessio, duobus heredibus relictis decessit: si unus omnem pecuniam solverit, partem familiae herciscundae iudicio servabit: nec, si partem solvat, ex empto cum venditore aget, quoniam ita contractum aes alienum dividi non potuit. 3Frumenta quae in herbis erant cum vendidisses, dixisti te, si quid vi aut tempestate factum esset, praestaturum: ea frumenta nives corruperunt: si immoderatae fuerunt et contra consuetudinem tempestatis, agi tecum ex empto poterit.

Labeo, Last Works, Epitomes of Javolenus, Book IV. It was stated in a contract that certain water-pipes referred to in a sale belonged to the purchaser. The question arose whether the building from which the water was conducted by the pipes was an accessory? I answered that it appeared that the intention was that it should be an accessory, although this was not contained in the written instrument. 1You purchased a tract of land from a certain person, the guardianship of whose son you afterwards administered, but you did not obtain possession of said land. I stated that possession could be delivered to you by causing the ward and his family to leave the premises, and that then you could enter into possession of the same. 2A man purchased a tract of land under the condition that possession of it should be delivered to him as soon as the price was paid. He died leaving two heirs, if one of them should pay the entire sum, he could retain his share in an action in partition; but if he only paid a part of the price, he could not bring an action on purchase against the vendor, since a debt contracted in this way cannot be divided. 3Where you sell grain which is uncut, and agree to make good any loss sustained by force, or by bad weather, and the said grain is destroyed by snow; if the fall was very great, and more than what usually took place at that season, an action on purchase can be brought against you.

Dig. 18,4,24Labeo libro quarto posteriorum a Iavoleno epitomatorum. Hereditatem Cornelii vendidisti: deinde Attius, cui a te herede Cornelius legaverat, priusquam legatum ab emptore perciperet, te fecit heredem: recte puto ex vendito te acturum ut tibi praestetur, quia ideo eo minus hereditas venierit, ut id legatum praestaret emptor, nec quicquam intersit, utrum Attio, qui te heredem fecerit, pecunia debita sit, an legatario.

Labeo, Last Works, Epitomes of Javolenus, Book IV. You sold your right of succession to the estate of Cornelius; then Attius (to whom Cornelius bequeathed a legacy with which you, as heir, were charged) before he received the legacy from the purchaser, died, making you his heir. I think that an action on sale can properly be brought by you in order that payment of the legacy may be made to you, because the right of succession was sold at a lower price in order that the purchaser might pay the legacy; nor does it make any difference whether the money was due to Attius, who appointed you his heir, or to the legatee.

Dig. 19,1,50Labeo libro quarto posteriorum a Iavoleno epitomatorum. Bona fides non patitur, ut, cum emptor alicuius legis beneficio pecuniam rei venditae debere desisset antequam res ei tradatur, venditor tradere compelletur et re sua careret. possessione autem tradita futurum est, ut rem venditor aeque amitteret, utpote cum petenti eam rem petitor ei neque vendidisset neque tradidisset.

Ad Dig. 19,1,50Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 123, Note 3.Labeo, Later Epitomes by Javolenus, Book IV. Good faith does not tolerate that, where a buyer, through the indulgence of some law, is not compelled to pay the price of the property purchased before it is delivered to him, the vendor shall be compelled to deliver it, and relinquish possession of the same. Where, however, possession has already been delivered, the result will be that the vendor will lose the property; for example, where the purchaser opposes the vendor, who claims the property, with an exception on the ground of sale and delivery; and hence the case will be the same as if the claimant had not either sold or delivered the property to him.

Dig. 19,2,28Labeo libro quarto posteriorum epitomatorum a Iavoleno. Quod si domi habitatione conductor aeque usus fuisset, 1praestaturum etiam eius domus mercedem, quae vitium fecisset, deberi putat. 2Idem iuris esse, si potestatem conducendi habebat, uti pretium conductionis praestaret. sed si locator conductori potestatem conducendae domus non fecisset et is in qua habitaret conduxisset, tantum ei praestandum putat, quantum sine dolo malo praestitisset. ceterum si gratuitam habitationem habuisset, pro portione temporis ex locatione domus deducendum esse.

Labeo, Later Epitomes by Javolenus, Book IV. Where, however, the tenant still makes use of the house, he must pay the rent. 1Labeo thinks that the rent is due, even if the house is out of repair. 2The same rule of law applies where the tenant has the power to lease the house and pay the rent. If, however, the landlord does not give the tenant authority to rent the house in which he lives, and he, nevertheless, does rent it, Labeo thinks that he must indemnify him for all that he has paid without fraudulent intent. But if the tenant was occupying the house gratuitously, a deduction should be made in proportion to the unexpired time of the lease.

Dig. 19,2,58Labeo libro quarto posteriorum a Iavoleno epitomatorum. Insulam uno pretio totam locasti et eam vendidisti ita, ut emptori mercedes inquilinorum accederent. quamvis eam conductor maiore pretio locaret, tamen id emptori accedit, quod tibi conductor debeat. 1In operis locatione non erat dictum, ante quam diem effici deberet: deinde, si ita factum non esset, quanti locatoris interfuisset, tantam pecuniam conductor promiserat. eatenus eam obligationem contrahi puto, quatenus vir bonus de spatio temporis aestimasset, quia id actum apparet esse, ut eo spatio absolveretur, sine quo fieri non possit. 2Quidam in municipio balineum praestandum annuis viginti nummis conduxerat et ad refectionem fornacis fistularum similiumque rerum centum nummi ut praestarentur ei, convenerat: conductor centum nummos petebat. ita ei deberi dico, si in earum rerum refectionem eam pecuniam impendi satisdaret.

Labeo, Later Epitomes by Javolenus, Book IV. You leased an entire house for a gross sum, and then sold it under condition that the rent of the tenants should belong to the purchaser. Even though the lessee may have sub-let the said house for a larger amount, it, nevertheless, will belong to the purchaser, because the lessee owed it to you. 1It was stated in a contract for labor that it should be performed before a certain day, and then, if this was not done, the lessee should be liable to an amount equal to the interest of the lessor. I think that this obligation is contracted to the extent that a good citizen would fix the damages with reference to the time; because the intention of the parties seems to have been that the work should be completed within the time during which it could be done. 2A certain individual rented a bath in a town for forty drachmæ a month, and it was agreed that he should be furnished a hundred drachmæ for the repair of the furnace, the pipes, and other portions of the bath, and the lessee demanded the hundred drachmæ. I think that they were owing to him, if he gave security that the money would be expended for repairs.

Dig. 40,12,42Labeo libro quarto posteriorum. Si servus quem emeras ad libertatem proclamavit et ab iudice perperam pro eo iudicatum est et dominus eius servi post rem contra te iudicatam te heredem fecit aut alio quo nomine is tuus esse coepisset, petere eum tuum esse poteris nec tibi obstabit rei iudicatae praescriptio. Iavolenus: haec vera sunt.

Labeo, Last Works, Book IV. If a slave whom you have purchased demands his freedom, and an unjust decision is rendered in his favor by the judge, and the master of the said slave makes you his heir, after the case has been decided against you, or the slave becomes yours in any other way, you can again claim him as yours; and the rule relating to res judicata cannot be pleaded against you. Javolenus says this opinion is correct.

Ex libro V

Dig. 18,1,80Labeo libro quinto posteriorum a Iavoleno epitomatorum. Cum manu sata in venditione fundi excipiuntur, non quae in perpetuo sata sunt excipi viderentur, sed quae singulis annis seri solent, ita ut fructus eorum tollatur: nam aliter interpretantibus vites et arbores omnes exceptae videbuntur. 1Huius rei emptionem posse fieri dixi: ‘quae ex meis aedibus in tuas aedes proiecta sunt, ut ea mihi ita habere liceat’, deque ea re ex empto agi. 2Silva caedua in quinquennium venierat: quaerebatur, cum glans decidisset, utrius esset. scio Servium respondisse, primum sequendum esse quod appareret actum esse: quod si in obscuro esset, quaecumque glans ex his arboribus quae caesae non essent cecidisset, venditoris esse, eam autem, quae in arboribus fuisset eo tempore cum haec caederentur, emptoris. 3Nemo potest videri eam rem vendidisse, de cuius dominio id agitur, ne ad emptorem transeat, sed hoc aut locatio est aut aliud genus contractus.

Labeo, Last Works, Epitomes of Javolenus, Book V. Where a vendor in a sale reserves all crops which have been sowed by hand, those which have been permanently planted are not held to have been reserved, but only such as are usually sowed every year, in order that their yield may be gathered; for, if this was interpreted otherwise, all vines and trees would be held to have been reserved. 1I stated that a purchase could not be made of property in the following terms, namely: “I shall enjoy the right to have my house project over yours,” and that on this account an action on purchase can be brought. 2The right to cut wood was sold for the term of five years, and the question arose to whom the acorns which might fall would belong? I am aware that Servius gave it as his opinion that what appeared to be the intention of the parties must be followed in this instance. If, however, this cannot be ascertained, any acorns which fell from trees, which were not cut down will belong to the vendor, and those which remained on the trees which were cut down, will be the property of the purchaser. 3No one can be held to have sold property whose ownership is in question, unless it was delivered to the purchaser; for this is either a lease, or some other kind of a contract.

Dig. 19,1,51Idem libro quinto posteriorum a Iavoleno epitomatorum. Si et per emptorem et venditorem mora fuisset, quo minus vinum praeberetur et traderetur, perinde esse ait, quasi si per emptorem solum stetisset: non enim potest videri mora per venditorem emptori facta esse ipso moram faciente emptore. 1Quod si fundum emisti ea lege, uti des pecuniam kalendis Iuliis, et si ipsis calendis per venditorem esset factum, quo minus pecunia ei solveretur, deinde per te staret quo minus solveres, uti posse adversus te lege sua venditorem dixi, quia in vendendo hoc ageretur, ut, quandoque per emptorem factum sit, quo minus pecuniam solvat, legis poenam patiatur. hoc ita verum puto, nisi si quid in ea re venditor dolo fecit.

The Same, Later Epitomes by Javolenus, Book V. Ad Dig. 19,1,51 pr.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 345, Note 13.Where the purchaser and the vendor are both in default with reference to the delivery and acceptance, the result will be the same as if the purchaser alone was responsible. For the vendor cannot be held to be in default with reference to the purchaser, when the latter himself is also guilty of delay. 1Ad Dig. 19,1,51,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 323, Note 9.Where you purchased a tract of land under the condition that you would pay the purchase-money on the Kalends of July; even though, when the time had expired, the vendor was at fault for the money not being paid to him, and afterwards you were to blame for not paying it; I stated that the vendor could avail himself of the condition stated in the contract, as against you; because in making the sale it was the intention of the parties that if the purchaser was in default for non-payment of the money, he would be liable for the penalty mentioned in the contract. I think this opinion to be correct, unless the vendor was guilty of fraud in the transaction.

Dig. 19,2,60Labeo posteriorum libro quinto a Iavoleno epitomatorum. Cum in plures annos domus locata est, praestare locator debet, ut non solum habitare conductor ex calendis illis cuiusque anni, sed etiam locare habitatori si velit suo tempore possit. itaque si ea domus ex kalendis Ianuariis fulta in kalendis Iuniis permansisset, ita ut nec habitare quisquam nec ostendere alicui posset, nihil locatori conductorem praestaturum, adeo ut nec cogi quidem posset ex kalendis Iuliis refecta domu habitare, nisi si paratus fuisset locator commodam domum ei ad habitandum dare. 1Heredem coloni, quamvis colonus non est, nihilo minus domino possidere existimo. 2Vestimenta tua fullo perdidit et habes unde petas nec repetere vis: agis nihilo minus ex locato cum fullone, sed iudicem aestimaturum, an possis adversus furem magis agere et ab eo tuas res consequi fullonis videlicet sumptibus: sed si hoc tibi impossibile esse perspexerit, tunc fullonem quidem tibi condemnabit, tuas autem actiones te ei praestare compellet. 3Lege dicta domus facienda locata erat ita, ut probatio aut improbatio locatoris aut heredis eius esset: redemptor ex voluntate locatoris quaedam in opere permutaverat. respondi opus quidem ex lege dicta non videri factum, sed quoniam ex voluntate locatoris permutatum esset, redemptorem absolvi debere. 4Mandavi tibi ut excuteres, quanti villam aedificare velles: renuntiasti mihi ducentorum impensam excutere: certa mercede opus tibi locavi, postea comperi non posse minoris trecentorum eam villam constare: data autem tibi erant centum, ex quibus cum partem impendisses, vetui te opus facere. dixi, si opus facere perseveraveris, ex locato tecum agere, ut pecuniae mihi reliquum restituas. 5Messem inspiciente colono, cum alienam esse non ignorares, sustulisti. condicere tibi frumentum dominum posse Labeo ait, et ut id faciat, colonum ex conducto cum domino acturum. 6Locator horrei propositum habuit se aurum argentum margaritam non recipere suo periculo: deinde cum sciret has res inferri, passus est. proinde eum futurum tibi obligatum dixi, ac si propositum fuit, remissum videtur. 7Servum meum mulionem conduxisti: neglegentia eius mulus tuus perit. si ipse se locasset, ex peculio dumtaxat et in rem versum damnum tibi praestaturum dico: sin autem ipse eum locassem, non ultra me tibi praestaturum, quam dolum malum et culpam meam abesse: quod si sine definitione personae mulionem a me conduxisti et ego eum tibi dedissem, cuius neglegentia iumentum perierit, illam quoque culpam me tibi praestaturum aio, quod eum elegissem, qui eiusmodi damno te adficeret. 8Vehiculum conduxisti, ut onus tuum portaret et secum iter faceret: id cum pontem transiret, redemptor eius pontis portorium ab eo exigebat: quaerebatur, an etiam pro ipsa sola reda portorium daturus fuerit. puto, si mulio non ignoravit ea se transiturum, cum vehiculum locaret, mulionem praestare debere. 9Rerum custodiam, quam horrearius conductoribus praestare deberet, locatorem totorum horreorum horreario praestare non debere puto, nisi si in locando aliter convenerit.

Labeo, Last Epitomes by Javolenus, Book V. Where a house is rented for several years, the lessor must not only permit the lessee to occupy it from the Kalends of July of each year, but also to sub-let the same during the term of his lease, if he desires to do so. Therefore, if the said house remains in a dilapidated condition from the Kalends of January to the Kalends of July, so that no one can occupy it, and it cannot be shown to anyone; the lessee will not be obliged to pay any rent to the lessor. Nor, indeed, can he be compelled to occupy the house, if it has been repaired after the Kalends of July, unless the lessor was ready to furnish him another house suitable for his residence. 1I think that the heir of a lessee, even though he may not be a tenant, will, nevertheless, hold possession for the owner of the property. 2If a fuller loses your clothing, and you have the means to recover it, but do not wish to avail yourself of them; you can, nevertheless, bring an action on lease against the fuller. The judge, however, must decide whether it will not be better for you to bring an action against the thief and recover your property from him; of course, at the expense of the fuller. But if he should consider this to be impossible, he must then render judgment in your favor against the fuller, and compel you to assign your rights of action to him. 3An agreement having been entered into, a house was contracted for under the condition that it should be subject to the approval or disapproval of the owner, or his heir. The contractor, with the consent of the other party, made certain changes in the work. I have it as My opinion that the work did not seem to have been performed in compliance with the terms of the contract, but since the changes had been made with the consent of the owner, the contractor should be released. 4I directed you to make an estimate of the amount you would ask to build a house, and you answered me that you would build it for two hundred aurei. I gave you the contract for a certain sum, and I afterwards ascertained that the house could not be built for less than three hundred aurei. I had already paid you a hundred, a part of which you had expended, and I then forbade you to proceed with the work. I held that if you continued to do the work, I would be entitled to an action on lease against you, to compel you to refund to me the remainder of the money. 5You remove a harvest, while the tenant is looking on, when you are aware that it belongs to someone else. Labeo says that the owner can sue you for the grain, and that the tenant has a right, under his lease, to bring an action against the owner to compel him to do so. 6The lessor of a warehouse had posted upon it that he would not receive deposits of gold, silver, or jewels at his own risk, and afterwards he, knowingly, allowed articles of this kind to be left in said warehouse. Hence, I stated that he would be liable to you just as if the clause in the notice had been erased. 7Ad Dig. 19,2,60,7BOHGE, Bd. 1 (1871), S. 253: Verantwortlichkeit des Principals für den zugewiesenen Gehilfen.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 401, Note 5.You employed a slave of mine who was a muleteer, and you lost a mule through his negligence. If he hired himself, I hold that I must make good the damage to you on the ground of property employed for my benefit, but only to the extent of the peculium of the slave. If, however, I myself leased him, I will not be responsible to you for anything else than fraud and negligence. But if you leased a muleteer from me without the designation of his person, and I deliver to you the one by whose negligence the animal perished, I say that I must be responsible to you for negligence, because I selected the slave who caused you loss of this kind. 8You hired a vehicle to carry your baggage and make a journey, and when a bridge was crossed, and the keeper demanded toll, the question arose whether the driver should pay toll for his carriage alone. I think that, if he knew when he hired his vehicle that he would cross the bridge, he should pay the toll. 9I hold that the lessee of an entire warehouse should not be responsible to the proprietor of the same for the custody of property, for which the proprietor himself should be liable to those who rented of him, unless it was otherwise agreed upon in the lease.

Dig. 20,6,14Labeo libro quinto posteriorum a Iavoleno epitomatorum. Cum colono tibi convenit, ut invecta importata pignori essent, donec merces tibi soluta aut satisfactum esset: deinde mercedis nomine fideiussorem a colono accepisti. satisfactum tibi videri existimo et ideo illata pignori esse desisse.

Labeo, Later Epitomes by Javolenus, Book V. Where it is agreed upon between you and your tenant that whatever property he brings upon your land shall be considered pledged until the rent is paid to you, or you are satisfied in some other way, and you then accept a surety from the tenant for the payment of the rent, I think that you are satisfied, and therefore that the personal property brought on your land by the tenant ceases to be encumbered.

Ex libro VI

Dig. 3,5,42Labeo libro sexto posteriorum epitomatorum a Iavoleno. Cum pecuniam eius nomine solveres, qui tibi nihil mandaverat, negotiorum gestorum actio tibi competit, cum ea solutione debitor a creditore liberatus sit: nisi si quid debitoris interfuit eam pecuniam non solvi.

Ad Dig. 3,5,42ROHGE, Bd. 16 (1875), Nr. 82, S. 328: Ersatzanspruch aus der Tilgung bezw. Uebernahme der Schuld eines Andern.Labeo, On the Last Epitomes by Javolenus, Book VI. When you pay money in the name of a party who did not specially direct you to do so, you will be entitled to an action based on business transacted; since by that payment the debtor was discharged by his creditor, unless the debtor had some interest in not having the money paid.

Dig. 16,3,33Labeo libro sexto posteriorum a Iavoleno epitomatorum. Servus tuus pecuniam cum Attio in sequestre deposuit apud Maevium ea condicione, ut ea tibi redderetur, si tuam esse probasses, si minus, ut Attio redderetur. posse dixi cum eo, apud quem deposita esset, incerti agere, id est ad exhibendum, et exhibitam vindicare, quia servus in deponendo tuum ius deterius facere non potuisset.

Labeo, Last Epitomes of Javolenus, Book VI. Your slave deposited, in sequestration, a certain sum of money with Attius at the house of Mævius, on condition that it should be delivered to you if you proved that it was yours, but if you did not, that it should be delivered to Attius. I stated that suit could be brought for an unascertained amount against him with whom the money was deposited, that is, for its production, and having been produced, an action could be brought for its recovery, because your slave, in making the deposit, could not prejudice your rights.

Dig. 17,2,84Labeo libro sexto posteriorum a Iavoleno epitomatorum. Quotiens iussu alicuius vel cum filio eius vel cum extraneo societas coitur, directo cum illius persona agi posse, cuius persona in contrahenda societate spectata sit.

Labeo, Abridgments by Javolenus, Book VI. Whenever a partnership is formed by the direction of anyone, either with the son of the latter or with another person, a direct action can be brought against the one who was in view when the partnership was formed.

Dig. 23,3,79Labeo libro sexto posteriorum a Iavoleno epitomatorum. Avus neptis nomine filio natae genero dotem dedit et moritur. negat Servius dotem ad patrem reverti et ego cum Servio sentio, quia non potest videri ab eo profecta, quia nihil ex his sui habuisset. 1Pater filiae nomine centum doti ita promisit ‘cum commodissimum esset’. Ateius scripsit Servium respondisse, cum primum sine turpitudine et infamia dari possit, deberi.

Labeo, Epitomes of the Last Works of Javolenus, Book VI. A grandfather gave a dowry for his granddaughter, the daughter of his son, to his son-in-law, and then died. Servius denies that the dowry reverts to the father, and I agree with him, because it cannot be held to be derived from him, as he never owned any of the property. 1A father promised a hundred aurei to his daughter, by way of dowry, on condition that it should be paid when perfectly convenient. Ateius says that Servius gave it as his opinion, that the father should pay the dowry as soon as he could do so without subjecting himself to dishonor and infamy.

Dig. 24,1,65Labeo libro sexto posteriorum a Iavoleno epitomatorum. Quod vir ei, quae nondum viripotens nupserit, donaverit, ratum futurum existimo.

Labeo, Epitomes of Last Works, by Javolenus, Book VI. Where a man makes a donation to a woman who is not yet marriageable, I think that it will be valid.