Papinianus, Questions, Book X. It makes little difference, so far as the loss of the right of action to recover is concerned, whether, after a slave had been stolen, an offer is made to return him, or whether the case is placed under a different class or a different species of obligation; for it does not matter to me whether the slave is present or not, as the default which arose from the theft is disposed of by a kind of assignment of the claim.

Papinianus, Questions, Book X. The purchase of land is not held to have been contracted for where the trees situated thereon have been overthrown by the wind, or consumed by fire, if it was made in consideration of said trees (as, for instance, in the case of olive trees), and this is true, whether the vendor was aware of the fact, or was ignorant of it. For whether the purchaser was aware of it or not, or whether both parties were aware of it, the same rule prevails which, in previous instances, have been laid down with reference to buildings.

Papinianus, Questions, Book XII. Where, after the contract is made, the parties deduct something from the property purchased, this is considered to be included in the original contract, but where they make additions, we do not think that these form part of the contract. This takes place where something is added which supports the purchase; for instance where a bond for double the amount is furnished, or where a bond is furnished together with a surety. But in case the purchaser brings an action where the agreement is not valid, and the vendor also brings one, he will also have the right to avail himself of an exception. The question has very reasonably been asked whether the same rule applies where the price has been subsequently increased, or diminished; since the substance of the purchase consists of the price. Paulus states in a note that where everything remains in its original condition, and an agreement is afterwards made with reference to the increase or diminution of the price, the parties are held to have withdrawn from their former contract, and a new purchase to have been made. 1Papinianus says that where a sale is made in the following terms, namely: “This sale shall be void if it has reference to anything sacred, religious, or public,” and the property is not in public use, but belongs to the Treasury, its sale will be valid, and the vendor cannot avail himself of an exception because it will not be operative.

Papinianus, Questions, Book X. Where a slave is forbidden by an agreement with the vendor to reside in the suburbs of a certain city, he is also held to be forbidden to reside in the city itself. And, indeed, although this has been prescribed by the Edicts of the Emperors, its meaning is obvious, for he who is deprived of a residence in the less important parts of a city, cannot enjoy one in the more important parts of the same.

The Same, Questions, Book X. A slave was sold under the condition that he should not remain in Italy, and it was agreed between the parties, without a stipulation, that if the condition was not complied with the purchaser should pay a penalty. It is difficult to conclude that the vendor can bring an action on this ground through a desire for vengeance; but he can properly do so if the condition is not observed, and liability for the penalty promised should attach. The result of this will be, that he can only bring suit for what the purchaser is obliged to pay, for whatever is in excess of that is a penalty, and not an attempt to recover the property. If, however, the agreement had been that the slave should not be removed by way of penalty, an action can properly be brought on the ground of affection; nor do these two cases seem to be antagonistic, since it is the interest of one man that another should be benefited; for, in fact, the indignity of the penalty which is not inflicted possesses only the attribute of cruelty.

Papinianus, Questions, Book X. The promise of a dowry is none the less valid where the father was ignorant in the beginning that the marriage had been performed, if he should afterwards consent to it; since every promise of a dowry is understood to be founded on the tacit condition under which the marriage is to take place. For where a girl less than twelve years of age has been married, as if she was older, her husband can demand the dowry when she, while still living with him, attains the age of twelve years. While it is commonly stated that the promise of a dowry only has reference to first marriages, and that the obligation does not continue to exist if the woman marries the man to whom she promised the dowry after he has married someone else, it will then be operative when another marriage has intervened.

Papinianus, Questions, Book X. Where a man, for the purpose of benefiting his wife, leases property to her for a very small sum, the transaction is void. Where, however, a deposit takes place between the parties at a low appraisement, for the purpose of benefiting one of them, it will be valid. These opinions are different, because the lease cannot be made without a certain rent, but a deposit can be made without any valuation of the property. 1A wife provided that the crops of a tract of land should be given to her husband by her heir, and if this should not be done, she promised a certain sum of money mortis causa. The husband, having died during the life of the wife, the stipulation was extinguished, as well as the delivery which was made mortis causa by the direction of the latter; for in an instance where a personal action for the recovery of property will lie among strangers, this will not take place among married persons.

The Same, Questions, Book X. Where a partner granted freedom to a slave by will, as follows, “Let Pamphilus be free, if my partner should manumit him,” Servius gave it as his opinion that if the partner should manumit the slave, he will become the common freedman of the heirs of the deceased and of the partner who manumitted him; for it is neither new nor unreasonable for a slave held in common to obtain his freedom by the exercise of different rights.

Ad Dig. 46,1,48ROHGE, Bd. 4 (1872), S. 325: Rechtsverhältniß mehrerer Bürgen dem Gläubiger gegenüber. Regreß eines Mitbürgen an den andern zur Hälfte, ungeachtet letzterer nur zur letzten Stelle hat haften wollen. Beneficium cedendarum actionum, divisionis, excussionis.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 479, Note 7.The Same, Questions, Book X. If Titius and Seia should become sureties for Mævius, the woman having been discharged, we will grant an action for the entire amount against Titius, as he could have known, and ought not to have been ignorant of the fact that a woman cannot become a surety. 1The following question seems to be similar; namely, if one surety obtains complete restitution on account of his age, should the other assume the entire burden of the obligation? He, however, ought only to be charged with it, if the minor should subsequently become security, on account of the uncertainty of restitution because of his age. When, however, the minor was fraudulently induced by the creditor to become surety, relief should not be granted the creditor against the other surety; any more than if the minor, having been deceived by a novation, should desire a prætorian action to be granted him against his former debtor.