Papinianus, Definitions, Book I. A statute is a general precept; a resolution of men learned in the law; a restraint of crimes committed either voluntarily or through ignorance; or a general obligation of the State.

Papinianus, Definitions, Book I. When the Aquilian stipulation is made use of, the consent of the contracting parties is implied, and any actions which they had not yet thought of remain in their former condition; for the interpretation of persons learned in the law is opposed to all captious liberality.

Papinianus, Definitions, Book I. When a condition refers to the time when the obligation was contracted, the stipulation is not suspended, and if the condition is an actual one, the stipulation will hold, even though the contracting parties do not know that this is the case; for instance: “Do you promise to pay me a hundred thousand sesterces if the King of the Parthians is living?” The same rule also applies where the condition refers to time which has passed:

Papinianus, Definitions, Book I. Therefore the clause only acquires the force of a condition when it relates to the future.

The Same, Definitions, Book I. Possession is held to have been transferred where the keys of a warehouse containing merchandise have been delivered, provided they are given up at the said warehouse; and when this is done, the purchaser immediately acquires ownership, and possession of the same, even though he does not open the warehouse; and if the merchandise does not belong to the vendor, the right of usucaption begins immediately to run.

The Same, Definitions, Book I. An error of fact does not, indeed, prejudice the rights of men where they seek to obtain property, or to avoid losing it; and ignorance of the law is no advantage, even to women, when they attempt to acquire it. A mistake in law, however, does not injure any person in an attempt to avoid the loss of property.

The Same, Definitions, Book I. Where the prefect of a cohort or of cavalry, or a tribune, marries a woman of the province in which he is stationed, this being prohibited by law, the marriage will be void. This case is similar to that of a ward, as the marriage is forbidden on account of the authority exercised. But is there room for doubt that where a virgin marries, she can be deprived of what was left to her by will? As in the case of a ward married to her guardian, the wife can acquire everything that is bequeathed to her; still, any money which has been left by way of dowry must be given up to the heir of the woman.

The Same, Definitions, Book I. If a woman who has children should return to her husband through duplicity, after a quarrel; as for instance, where, through venal motives, she agrees that she shall not be endowed; this agreement being contrary to custom ought not to be enforced, in accordance with the circumstances of the case.

The Same, Definitions, Book I. A judge decided that one guardian out of several was liable for the entire amount. He who was the subject of the decree can act as attorney with reference to his own affairs, but he will not be entitled to the privilege of a ward, since this is not conferred even upon the heir of a ward, and relief is given, not to the case, but to the person of the ward, who is deserving of a special favor.

The Same, Definitions, Book I. When a ward transfers his right of action on guardianship to the guardian against whom a judgment has been rendered in full, to be enforced against his fellow-guardian, the right of action will not be extinguished, even though this is done after the judgment has been satisfied, because it is held that an account is not rendered for the share of the defeated guardian, but that the amount of the claim has been paid.

Papinianus, Definitions, Book I. A will is said not to have been executed in compliance with the law, where the legal formalities are lacking; or to be of no force and effect, where a son who is under the control of his father is passed over; or broken by another subsequent will, when by the terms of the latter, an heir is created, or the birth of a proper heir takes place; or where it does not become operative because the estate is not entered upon.

Papinianus, Definitions, Book I. An estate cannot legally be bequeathed from a certain time or until a certain time, but the defect with reference to the time having been ignored, the appointment of the heir will stand.

The Same, Definitions, Book I. If no mention was made of the remainder, and the number of the shares was doubled, Mævius would only be entitled to as much as Titius would have been entitled to in the first place.

The Same, Definitions, Book I. Where a man left two children his heirs who had not yet reached the age of puberty, and made a substitution for them as follows: “If both of them should die”, and both died at the same time, after the death of their father, the two estates will belong to the substitute; but if they died at different times, the substitute will find in the estate of the boy who died last that of his brother who died previously, but, according to the terms of the Falcidian Law, the estate of the first boy will not be included; the substitute cannot claim more than an eighth of the estate under the will; and the legacies, with whose distribution the substitute of the son who first died intestate was charged, become of no effect.

Ad Dig. 31,80Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 652, Note 17.The Same, Definitions, Book I. A legacy transfers the ownership of the property bequeathed, just as inheritance vests in the heir the ownership of each individual article included in it, the result of which is, that if the property is bequeathed absolutely, and the legatee does not reject the will of the deceased, the ownership of the property belonging to the estate passes directly to the legatee, without having become the property of the heir.

The Same, Definitions, Book I. “Let my heir pay Titius a hundred aurei at the time of the latter’s death.” The legacy is absolute for the reason that it is not dependent upon the condition, but upon delay; for a condition cannot exist under such circumstances. 1“Let my heir, when he dies, pay Titius a hundred aurei.” This legacy is bequeathed under a condition. For although it is certain that the heir will die, it is, nevertheless, uncertain whether the time for the payment of the legacy will arrive during the life of the legatee, and it is not certain that he will receive it. 2Where anyone receives a legacy after having furnished a Mucian bond, and does something contrary to the terms of the bond, and the stipulation becomes operative, he must also restore the profits of the property to the heir. In this instance the legatee should be compelled to give security from the beginning. 3Although an usufruct to take effect at the time of the death of the legatee, when bequeathed in this way is void, still, the remedy of the Mucian bond will be available where the usufruct of property is bequeathed to anyone under the condition that he will not perform some act. 4Anything which is done to evade the law by preventing marriage has no force or effect, as for example, “Let my heir pay Titius a hundred aurei if his daughter, whom he has under his control, does not marry,” or “Let my heir pay the said sum to such-and-such a son under paternal control, if his father does not marry.”

The Same, Definitions, Book I. The claim made against a person is designated an “action;” one made against a thing is called a “petition,” the term “pursuit,” instituted for the purpose of recovering the property, is employed both against things and persons.

Ad Dig. 45,1,123ROHGE, Bd. 15 (1875), Nr. 7, S. 18: Verweisung des Gläubigers seitens eines Solidarschuldners an den andern unter Sicherstellung des Gläubigers. Keine Einrede daraus für den andern Schuldner?Papinianus, Definitions, Book I. A stipulation entered into concerning a crime which has been Or is to be committed, is void from the beginning.

Papinianus, Definitions, Book II. The Civil Law is that which is derived from statutory enactments, plebiscites, decrees of the Senate, edicts of the Emperors, and the authority of learned men. 1The Prætorian Law is that which the Prætors introduced for the purpose of aiding, supplementing, or amending, the Civil Law, for the public welfare; which is also designated honorary law, being so called after the “honor” of the Prætors.

Papinianus, Definitions, Book II. Where an usufruct in the same thing is bequeathed to different persons at the charge of different heirs, the usufructuaries are not less held to be separate than if the usufruct of the same property had been bequeathed to the two in equal shares; whence it happens that no right of accrual exists between them:

The Same, Definitions, Book II. Where a surety who is legally released pays money through mistake, he will not be prevented from bringing an action for its recovery; but if the principal debtor should afterwards himself make payment by mistake, he cannot bring suit to recover, since the first payment, which was void, does not dissolve a natural or a civil obligation if the principal debtor was liable.

The Same, Definitions, Book II. A guardian, in compliance with a decree of the Prætor, left an agent for the administration of the affairs of his ward. If judgment is rendered in favor of said agent, an action for its enforcement will be transferred to the ward, just as if the guardian himself had obtained it.

The Same, Definitions, Book II. A grandson can manumit a slave with the consent of a grandfather, as a son can do with the consent of his father; but the manumitted slave will become the freedman of the father, or the grandfather.

The Same, Definitions, Book II. Persons learned in the law have placed in the class of slaves to be conditionally free one who has been substituted for a son with the grant of his freedom by a second will. This rule is useful, as it prevents a son, who is a minor, from annulling his father’s will by permitting the slave to be alienated subject to the charge of his freedom. This interpretation of the law extends, without any distinction, to every case where the slave is substituted either in the second or the third degree.

The Same, Definitions, Book II. Although we do not leave a slave or a tenant there when we depart.

The Same, Definitions, Book II. Possession can be acquired by me through a slave in whom I have the usufruct if this is done by means of my property, or the services of the slave; because the latter is naturally held by the usufructuary, and possession borrows many things from the law. 1Those who are under the control of others can hold property belonging to their peculium, but they cannot possess it; for the reason that possession is not only a matter of fact, but is also one of law. 2Although possession through an agent can be acquired by a principal without his knowledge, usucaption can only benefit one who knows that possession has been taken; still, an action for eviction is not granted to the principal against the vendor without the consent of the agent, but he can be compelled to grant it by an action on mandate.

The Same, Definitions, Book II. Where an heir succeeds to all the rights of the deceased, his ignorance does not affect any defective title of the latter; for example, if the deceased knew that the property belonged to another, he held possession of it by a precarious title. For, although such a title does not bind the heir who was not aware of it, and proceedings under the interdict cannot properly be brought against him, still, he cannot acquire the property by usucaption, as the deceased was unable to do so. The same rule of law applies where property is claimed on the ground of long-continued possession, for an action cannot legally be defended where, in the beginning, it was not founded on a bona fide title.

The Same, Definitions, Book II. “Do you promise to build a house in such-and-such a place within two years?” The stipulation will not become operative before the end of two years, even though the person making the promise should not build it, and sufficient time does not remain in which it can be completed; for the provisions of the stipulation, the time of which was fixed in the beginning, cannot be changed by something which may afterwards occur, and this was inserted in the agreement for the purpose of compelling someone to appear in court; that is to say, the stipulation will not become operative before the prescribed date, even if it is certain that there is not sufficient time remaining to comply with the contract.

The Same, Definitions, Book II. Having stipulated for the Cornelian Estate, I afterwards stipulated for the value of the land. If the second stipulation was not made with the intention of creating a novation, the novation will not take place; but the second stipulation, by the terms of which not the land, but the money is due, will stand. Therefore, if the promisor should convey the land, the second stipulation will not be extinguished by operation of law, not even when the plaintiff institutes proceedings under the terms of the first one. Finally, if the land, being improved, or having subsequently deteriorated without the fault of the debtor, is claimed, the present estimate may properly be considered; and if, on the other hand, its value is demanded, the appraisement at the time of the second stipulation should be accepted.

Ad Dig. 46,3,97ROHGE, Bd. 22 (1878), Nr. 14, S. 65: Zahlungsanrechnung bei Existenz mehrerer Forderungen.The Same, Definitions, Book II. When a debtor pays money on account of several claims, and does not indicate which one of them he wishes to discharge, that which involves infamy is considered to be entitled to the preference; next, the one to which a penalty is attached; third, one which is secured by the hypothecation or pledge of property; and after this an individual obligation shall have priority, rather than one for which another is liable, as, for instance, that of a surety. The ancient authorities established this rule because it seemed to them probable that a diligent debtor, if properly advised, would transact his business in this manner. Where none of these conditions exist, payment should first be made upon the oldest claim. If the amount paid is larger than that required by any single debt, the first obligation which has the preference having been discharged, the surplus will be considered to have been credited on the second one, either in full satisfaction, or for the purpose of diminishing it to that extent.

Papinianus, Definitions, Book II. While the case between the accuser and the defendant is pending in court, the excuse of absence for good reasons is admitted; and although the defendant may have been called three times a day for three days, he should not be condemned; or if the accuser should be absent and the defendant present, the former ought not be convicted of malicious prosecution.

Papinianus, Definitions, Book II, The sanction of the laws, which, in the last section, impose a certain penalty upon those who do not obey their precepts, is not held to apply to those cases in which a penalty is specifically added by the law itself, and there is no doubt that in every law the species is subordinated to the genus. Nor is it probable that one crime should be punished by different penalties under the same law.

The Same, Definitions, Book II. A father having the right to retain the castrense peculium of his son who died intestate is compelled by the Prætorian Law to pay his debts during the available year, as far as the peculium will allow. Likewise, if he should become the testamentary heir of his son, he will always be liable for these debts as his heir, under the Civil Law. 1A father who was appointed heir by his son, who either was or had been in the army, did not accept the estate under the will, and kept possession of his castrense peculium. He can, just as an heir at law, be compelled without limit of time to pay any legacies bequeathed by his son, to the extent that the peculium will permit. If, however, the son, having made his will according to the Common Law, should die within a year after leaving the army, a fourth of his estate can be retained by his father under the Falcidian Law. But if his father should fail to accept the estate under the will, because the peculium was not sufficient to satisfy the creditors, he will not be considered to have acted fraudulently; although he may be obliged to discharge the indebtedness during the prescribed time.

The Same, Definitions, Book II. No one is considered to have lost something if it did not belong to him.