Ad Dig. 4,4,38Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 117, Note 6.Paulus, Decrees, Book I. Æmilius Larianus purchased from Obinius the Rutilian tract of land, subject to the condition of payment on a certain day, and paid down a part of the purchase-money; it being understood that if, within two months from that date, he should not have paid half of the remainder of the price, the sale should be considered void; and also, if he did not pay the remainder within two months more, the sale should also be held to be void. Larianus, having died before the first two months had elapsed, was succeeded as heir by Rutiliana, a minor, whose guardians neglected to make payment within the specified time. The vendor, having served several notices upon the guardians, after a year had elapsed sold the property to Claudius Telemachus; and then the ward applied for complete restitution, and having lost the case before the Prætor, as well as the Prefect of the City, she appealed. I was of the opinion that the decision was correct, because her father, and not herself, made the contract; the Emperor, however, decided that, as the day when the condition was to be fulfilled came during the time when the girl was a ward, this was good cause why the condition of the sale should not be observed. I stated that she was rather to be granted restitution for the reason that the vendor, by notifying her guardians after the time when it was agreed that the sale should be annulled, and by demanding the purchase-money, should be held to have abandoned the condition which was for her benefit, and that I was not influenced by the fact that the time had afterwards elapsed; any more than I would have been had a creditor sold a pledge after the death of a debtor, when the day of payment had passed. Still, because the law of conditional avoidance was displeasing to the Emperor, he decreed that complete restitution should be granted. He was also influenced by the fact that former guardians, who had not applied for restitution, had been declared to be liable to suspicion. 1When it is stated that relief is not ordinarily granted to the son of a family after he has been emancipated, if he is still a minor, with reference to matters which he had neglected while under paternal control; this is only held to be the case where he would otherwise acquire property for the benefit of his father.

Paulus, Decrees, Book I. A certain woman appealed from the decision of a judge because, as she stated, in an action for the partition of an estate between herself and the co-heir, he had divided not only the property but the freedmen also, as well as an obligation for maintenance directed by the testator to be furnished to certain freedmen; which, she alleged was something that he had no right to do. On the other hand, it was stated that the parties had agreed to the division, and had paid sums for maintenance in accordance with the terms of the division for many years. It was decided that they must abide by the provision for maintenance; but the judge added that the division of freedmen was of no effect.

Paulus, Decrees, Book I. Titianus Primus appointed a slave for the purpose of lending money and taking pledges; and the said slave was also accustomed to bind himself for, and to pay the obligations of persons who dealt in barley. The slave having run away, and the party to whom he had been substituted to pay the price of the barley having sued his master on account of the business manager, he denied he could be sued on this ground, because he had not been appointed for the transaction of this business. But as it was proved that the same slave had transacted other business and had rented granaries, and paid money to many people, the Prefect of Subsistence rendered a decision against the master. We stated that he appeared to be a kind of surety, since he was paying the debts of another, for he assumed payment in behalf of others, but that it was not usual for an action to be granted against a master for a reason of this kind, nor did it appear that the master had directed him to do this. But as he seemed to have appointed the slave to act in his behalf in all these transactions, the Emperor confirmed the decision.

Paulus, Decrees, Book I. A creditor who, availing himself of his privilege, sells a pledge, is obliged to assign his rights; and if he is in possession of a pledge he must certainly transfer it.

The Same, Decrees, Book I. Interest is not exacted on money given to the Government by way of liberality. 1When interest on the price of a tract of land was demanded of a party who had purchased it from the Treasury, and the purchaser denied that possession had been delivered to him; the Emperor ruled that it was unjust for interest to be exacted of one who had not gathered the crops.

Paulus, Decrees, Book I. An action for theft will lie in favor of a creditor for the value of a pledge, but not for the amount of the debt. But when the debtor himself steals the pledge, the contrary is true; so that the action for theft can be brought for the amount of money due, and for the interest on the same.

Paulus, Decrees, Book I. A woman named Moschis, who was indebted to the Treasury on account of a lease for the farming of taxes, left several heirs, from whom, after the estate had been accepted, Faria Senilla and others, purchased certain lands. When suit was brought against them for a balance due from Moschis, they having alleged that the heirs of the latter were solvent, and that many other persons had bought property from them, the Emperor considered it just that recourse should first be had to the heirs, and that all the possessors should be sued for the balance. And this was his decision. 1Æmilius Ptolemy leased land from the Treasury, and gradually sublet it to several persons for a higher rent than he himself had agreed to pay. Suit was brought against him by the Managers of the Imperial Revenues for all that he had collected. This seemed to the Treasury to be both unjust and useless, as he had leased the land to the others at his own risk, and therefore it was decided that he could be sued only for the amount for which he, as lessor, had rendered himself liable.

Paulus, Decrees, Book I. The Emperor Severus said: “Even if Titius should be proved to have been born to a father who was in slavery, but of a mother who was free, he is not thereby prevented from becoming a decurion in the city of his birth.” 1There is no doubt that sailors cannot become decurions.