Ad Dig. 3,5,22ROHGE, Bd. 15 (1875), Nr. 73, S. 263: Verpflichtung des neg. gestor zur Herausgabe dessen, was er in Ausführung des Geschäfts erworben, an den dom. negot. Beweislast, wenn er es aus einem andern Grunde in Besitz genommen.Paulus, On the Edict, Book XX. Where anyone, while transacting the business of another, has collected a debt which was not due, he can be forced to make restitution; but where he, in the course of the business, has paid a debt which was not due, it is the better opinion that he must blame himself for it.

Paulus, On the Edict, Book XX. It makes no difference whether the person is a debtor on account of some offence which he has committed, or by reason of a contract. The term “debtor to an estate” is understood to include a person who incurred some liability to a slave belonging to the estate, or one who did some damage to it before it was entered upon,

Paulus, On the Edict, Book XX. And, indeed, it embraces not only tangible property belonging to the estate, but also such as does not form part of it, but which is nevertheless at the risk of the heir; as for instance, articles given in pledge to the deceased, or loaned to him, or deposited with him. In fact, as to articles left in pledge, there is a special action for their recovery, even though they are included in the suit for the estate, like those articles which are the object of the Publician Action. But although an action cannot readily be brought with reference to articles which have been loaned or deposited, it is still just that they should be restored, because parties are subject to risk on their account. 1But where the term requisite to acquire ownership by usucaption, as purchaser, has been completed by the heir, that is to say, the plaintiff, the property will not be included in the suit for recovery of the estate, nor will any exception be granted the possessor. 2Those articles also are included in the suit for recovery of an estate which the possessor has a right to retain, though not the right of action to recover them; for example, where the deceased had sworn that the property did not belong to the plaintiff, and then died, this must also be restored. Nay more, where the possessor of property lost it through his own fault, he will be liable on this account. The same rule will apply to the case of a depredator, although he is not liable on the ground of negligence, because he ought not to retain the property. 3I have stated that servitudes are not included in the restitution of property belonging to an estate, since there is nothing to be restored under that head, as in the case of material things and their profits; but if the owner of the land does not permit the other party to pass through without hindrance, a suitable action can be brought against him.

Paulus, On the Edict, Book XX. Where a bona fide possessor has obtained both the property and the purchase-money for the same; for example, because he purchased the identical thing, should he be heard if he prefers to surrender the property and not the purchase-money? We hold that in the case of a depredator, the plaintiff should have his choice; but, in this instance, the possessor has a better right to be heard, if he wishes to deliver the property itself, even though it may be deteriorated; but if the plaintiff wishes to have the purchase-money, he should not be heard, because a desire of this kind is an impudent one; or shall we consider that, since the purchaser has been enriched by property included in the estate, he should surrender it with the excess of the purchase-money over and above its present value? In an Address of the Divine Hadrian the following appears: “Conscript Fathers examine whether it is more equitable that the possessor should not obtain a profit, but should surrender the purchase money which he received for the sale of property belonging to another, as it may be decided that the purchase-money takes the place of the property of the estate which was sold, and, to a certain extent, becomes a portion of the assets of said estate”. Therefore the possessor is required to surrender to the plaintiff not only the property itself but also the profit which he obtained by the sale of the same.

Paulus, On the Edict, Book XX. Where the possessor is forcibly ejected, he is not obliged to give up a penalty incurred, because the plaintiff has no right to the same. Neither is he required to surrender a penalty which his adversary promised him if he should not be present at the trial.

Paulus, On the Edict, Book XX. And if lambs are born, and afterwards others are born of these, the latter must also be given up as an increase of the estate.

Paulus, On the Edict, Book XX. For, according to the Decree of the Senate, it must be held that every species of profit should be included, whether it is obtained from a bona fide possessor or from a depredator.

Paulus, On the Edict, Book XX. Julianus states that a plaintiff ought to elect whether he will demand merely the principal or the interest as well, taking an assignment of the rights of action at his own risk. But, according to this, we shall not observe what the Senate intended should occur, which was that a bona fide possessor should be liable to the amount by which he was enriched; and what would be the case if the plaintiff should elect to take money which the defendant had been unable to retain? It must be said therefore with reference to a bona fide possessor, that he is only obliged to pay either the principal and interest on the same, if he received any, or assign his right of action for whatever is still due to him under it; but of course, at the risk of the plaintiff.

Paulus, On the Edict, Book XX. Property which is acquired through a slave must be delivered to the heir. This rule applies also to the estate of a freeman, and where proceedings are instituted on the ground of an inofficious testament, when, for the time being, the slave is included in the property of the heir:

Paulus, On the Edict, Book XX. I am of the opinion that where the estate of the son of a family, who is a soldier, is left to anyone by will, an action to recover the same can be brought. 1Where a slave, or the son of a family has possession of property belonging to an estate, suit can be brought for the estate by either the father or the master, if the party has the power to give up the property. It is evident, if the master has obtained the purchase-money of property belonging to the estate, as a portion of the slave’s peculium, that then, as Julianus holds, the suit for recovery can be brought against the master as the possessor of a right.

Paulus, On the Edict, Book XX. Where suit for the recovery of an estate is brought against the owner of a slave or a father, who has the purchase money, should proceedings be instituted within a year after the death of the son or the slave, or after the slave has been manumitted, or the son emancipated? Julianus states that the better opinion is (and in this Proculus also concurs), that a perpetual action should be granted and that it is not necessary for the party’s own debt to be deducted, because the proceedings do not relate to peculium, but suit is brought for the recovery of an estate. This is correct where the slave or the son has the purchase-money; but if the suit is brought against the owner of the slave, because the debtor himself is a slave, action should be taken as if the peculium was involved in the case. Mauricianus says that the same rule applies, even if the slave or the son squanders the money obtained as the price, but it can be made good in some other way out of his peculium. 1There is, however, no doubt that a suit for the recovery of an estate can be brought against the son of a family, because he has the power to deliver it; just as he has to produce it in court. With much more reason can we say that an action for recovery can be brought against the son of a family who, when he was the head of a household and in possession of the estate, permitted himself to be arrogated. 2If the possessor should kill a slave belonging to the estate, this also can be included in the action for its recovery; but Pomponius says that the plaintiff must elect whether he desires judgment to be rendered in his favor against the possessor; provided he gives security that he will not proceed under the Lex Aquilia, or whether he prefers that his right of action under the Lex Aquilia should remain unimpaired, and not have an appraisement of the property made by the court. This right of election applies where the slave was killed before the estate was entered upon; for, if this were done subsequently, then the right of action becomes his own, and cannot be included in the suit to recover the estate. 3Where a plunderer fraudulently relinquishes possession, and the property is destroyed in the same way that it would have been destroyed if he had remained in possession under the same circumstances; then, considering the words of the Decree of the Senate, the position of the plunderer is preferable to that of the bona fide possessor; because the former, if he fraudulently relinquished possession, can have judgment rendered against him just as if he was still in possession, and it is not added in the decree: “If the property should be destroyed”. There is no question, however, that the position of the plunderer ought not to be better than that of the bona fide possessor. Therefore, if the property brought more than it was worth, the plaintiff should have the right to choose whether or not he will take the purchase-money; otherwise, the plunderer will profit to a certain extent. 4Some doubt is expressed as to the time when a bona fide possessor became enriched; but the better opinion is that the time when the case was decided should be considered in this instance. 5With reference to profits, it is understood that the expenses incurred in the production, collection, and preservation of the profits themselves should be deducted, and this is not only positively demanded on the ground of natural justice in the case of bona fide possessors, but also in that of plunderers, as was also held by Sabinus.

Paulus, On the Edict, Book XX. In the case of other necessary and useful expenses, it is evident that these can be separated, so that bona fide possessors may receive credit for the same, but the plunderer can only blame himself if he knowingly expended money on the property of another. It is more indulgent, however, to hold that, in this instance, the account of his expenses should be allowed, for the plaintiff ought not to profit by the loss of another, and it is a part of the duty of the judge to attend to this; for no exception on the ground of fraud is needed. It is clear that the following difference may exist between the parties for the bona fide possessor may, under all circumstances, deduct his expenses, although the matter in which they were incurred no longer exists, just as a guardian or a curator may obtain allowance for his; but a plunderer cannot do so, except where the property is rendered better through the expenditure.

Paulus, On the Edict, Book XX. The statement also which is contained in the Address of the Divine Hadrian, namely: “That after issue has been joined, that must be delivered to the plaintiff which he would have had if the estate had been surrendered to him at the time when he brought the suit,” sometimes entails hardship. For what if, after issue had been joined, slaves, beasts of burden, or cattle, should die? In this instance, the party in compliance with the terms of the Address, must indemnify the plaintiff, because the latter could have sold them if the estate had been surrendered. It is held by Proculus that this would be proper where suit is brought to recover specific articles, but Cassius thinks otherwise. The opinion of Proculus is correct where a plunderer is concerned, and that of Cassius is correct in the case of bona fide possessors; for a possessor is not obliged to furnish security against death, or, through fear of such an accident, injudiciously to leave his own right undefended. 1The plunderer is not entitled to any profit which he makes, but it increases the estate; and therefore he must deliver whatever is gained by the profits themselves. In the case of a bona fide possessor, those profits only by means of which the possessor has become enriched will be included in the restitution as an increase of the estate. 2Where the possessor has obtained any rights of action, he must surrender them if he is evicted from the estate; for example, where an interdict Unde vi, or Quod precario, has been granted him. 3On the other hand, also, where the possessor has given security for the prevention of the threatened injury, he must be indemnified. 4Noxal actions are likewise included in the jurisdiction of the judge, so that if the possessor is prepared to surrender a slave on account of some damage which he has committed against the estate, or because he has been guilty of theft, he shall be released from liability, just as is done in the interdict Quod vi aut clam.

Paulus, On the Edict, Book XX. And this action has the same effect as a civil suit for the recovery of an estate.

Paulus, On the Edict, Book XX. For the transfer of an estate is not merely a payment but a succession, as the beneficiary is liable.

Paulus, On the Edict, Book XX. Although the Senate referred to the transfer of these rights of action which, by the Civil Law, lie in favor as well as against the heir, still, prætorian rights of action are also assignable, for there is no difference between the two. Again cases involving natural obligations are likewise susceptible of transfer. 1An appointed heir is specifically referred to in the Trebellian Decree of the Senate; still, we have adopted the rule that the successor of an heir can lawfully make the transfer under the Trebellian Decree of the Senate, just as an heir, the prætorian possessor of the property of an estate, a father, or a master by whom the estate is acquired, can do. For all should assign any rights which they may have under the Trebellian Decree of the Senate, and it makes no difference whether the appointed heir, the father, or the master, is asked to transfer the estate. 2It is also immaterial to whom the transfer is made in our name, whether it be the head of a household, or someone who is under the control of another;

Paulus, On the Edict, Book XX. Because it is just the same as if the estate had been transferred to me. 1Where an estate is transferred, the rights of sepulture remain with the heir.

Paulus, On the Edict, Book XX. The debtors of an estate are not liable under the interdict Quorum bonorum, but only those who have possession of any property.

Paulus, On the Edict, Book XX. If the question is asked whether a ward can be barred by an exception on the ground of fraud, where money which was due to him has been paid without the authority of his guardian, and he demands payment a second time, it must be ascertained whether, when he makes the demand, he still has the money, or has purchased something with it.

Paulus, On the Edict, Book XX. When the Prætor grants an action against an heir for the amount by which he has profited, it is sufficient if the computation be made from the time when the property obtained by the fraud of the deceased came into his hands.