Quaestionum libri
Ex libro II
Dig. 5,2,20Scaevola libro secundo quaestionum. Qui de inofficioso vult dicere, licet negetur filius, Carbonianam bonorum possessionem non debet accipere (totiens enim ea indulgenda est, quotiens, si vere filius esset, heres esset aut bonorum possessor, ut interim et possideat et alatur et actionibus praeiudicium non patiatur: qui vero de inofficioso dicit, nec actiones movere debet nec aliam ullam quam hereditatis petitionem exercere nec ali), ne umquam melioris sit condicionis, quam si confitetur adversarius.
Scævola, Questions, Book II. Where anyone wishes to have a will declared inofficious, although it may be denied that he is the son of the deceased, he is not entitled to the Carbonian possession of property, for this is only permitted where, if the party were actually the son he would be the heir, or the legal possessor of the estate; so that if, in the meantime, he should obtain possession, and be supported, his rights would not be prejudiced by any actions which might be brought by him. Where a party makes a claim of inofficiousness, he cannot bring any actions except one to obtain the estate, and he has no right to support. This is done to prevent him from being in a better position than if his adversary had acknowledged him to be the son of the testator.
Dig. 11,7,46Scaevola libro secundo quaestionum. Si plura praedia quis habuit et omnium usum fructum separatim legaverit, poterit in unum inferri et electio erit heredis et gratificationi locus: sed fructuario utilem actionem in heredem dandam ad id recipiendum, quod propter eam electionem minutus est usus fructus. 1Si heres mulieris inferat mortuam in hereditarium fundum, a marito qui debet in funus conferre pro aestimatione loci consequatur. 2Ei, cui vestimenta legantur, si in funus erogata sint, utilem actionem in heredem dandam placuit et privilegium funerarium.
Scævola, Questions, Book II. Where a man had several tracts of land and bequeathed the usufruct of all of them separately, he can be buried in any one of them, and the heir shall have the right of selection, and the opportunity to favor the others. A prætorian action will, however, be granted the usufructuary against the heir, to enable him to recover damages to the amount that the value of his usufruct is diminished by the selection. 1Where the heir of a woman buries her body on land belonging to her estate, he can recover from her husband the amount which he should contribute towards the expense of the funeral, which depends upon the value of the land. 2Where clothing is bequeathed to anyone, and he sells it for the purpose of paying the funeral expenses, it is held that a prætorian action based on a prior claim should be granted against the heir.
Dig. 14,6,4Scaevola libro secundo quaestionum. quia quod volgo dicitur filio familias credi non licere, non ad verba referendum est, sed ad numerationem.
Dig. 14,6,6Scaevola libro secundo quaestionum. Contra etiam recte dicetur, si a patre familias stipulatus sis, credas postea filio familias facto, senatus potestatem exercendam, quia expleta est numeratione substantia obligationis.
Scævola, Questions, Book II. On the other hand, it is very properly stated that, if you have entered into a stipulation with the head of a family, and afterwards lend the money to him when he has become a son under paternal control, the power of the Decree of the Senate should be exercised, because the substantial part of the obligation was completed by the payment of the money.
Dig. 15,1,51Scaevola libro secundo quaestionum. Quod debetur servo ab extraneis, agenti de peculio non omnimodo dominus ad quantitatem debiti condemnandus est, cum et sumptus in petendo et eventus exsecutionis possit esse incertus et cogitanda sit mora temporis quod datur iudicatis, aut venditionis bonorum, si id magis faciendum erit. ergo si paratus sit actiones mandare, absolvetur. quod enim dicitur, si cum uno ex sociis agatur, universum peculium computandum quia sit cum socio actio, in eodem redibit, si actiones paratus sit praestare: et in omnibus, quos idcirco teneri dicimus quia habent actionem, delegatio pro iusta praestatione est.
Scævola, Questions, Book II. With reference to what is due to a slave from strangers, the master should, by no means, have judgment rendered against him for the amount of the debt, where anyone brings suit on the peculium; since both the expense incurred in bringing the action and the result of the execution may be uncertain, and the delay of time granted to those who have been held judicially liable, or that consumed in the sale of the property, should be considered, if this is the better thing to do; therefore, if the party is ready to assign his rights of action he will be discharged. What is said where an action is brought against one of several partners, namely: that the entire peculium must be computed, because the proceeding is against the partner, will have the same result if the party is ready to assign his rights of action; and, in the case of all those whom we say are liable on this account since they have a right of action, the substitution takes the place of legal payment.
Dig. 16,2,22Scaevola libro secundo quaestionum. Si debeas decem aut hominem, utrum adversarius volet, ita compensatio huius debiti admittitur, si adversarius palam dixisset, utrum voluisset.
Dig. 21,2,69Scaevola libro secundo quaestionum. Qui libertatis causam excepit in venditione, sive iam tunc cum traderetur liber homo fuerit, sive condicione quae testamento proposita fuerit impleta ad libertatem pervenerit, non tenebitur evictionis nomine. 1Qui autem in tradendo statuliberum dicit, intellegetur hanc speciem dumtaxat libertatis excipere, quae ex testamento impleta condicione ex praeterito possit optingere: et ideo si praesens testamento libertas data fuerit et venditor statuliberum pronuntiavit, evictionis nomine tenetur. 2Rursus qui statuliberum tradit, si certam condicionem pronuntiaverit, sub qua dicit ei libertatem datam, deteriorem condicionem suam fecisse existimabitur, quia non omnem causam statutae libertatis, sed eam dumtaxat quam pronuntiaverit excepisse videbitur: veluti si quis hominem dixerit decem dare iussum isque post annum ad libertatem pervenerit, quia hoc modo libertas data fuerit: ‘Stichus post annum liber esto’, evictionis obligatione tenebitur. 3Quid ergo, qui iussum decem dare pronuntiat viginti dare debere, nonne in condicionem mentitur? verum est hunc quoque in condicionem mentiri et ideo quidam existimaverunt hoc quoque casu evictionis stipulationem contrahi: sed auctoritas Servii praevaluit existimantis hoc casu ex empto actionem esse, videlicet quia putabat eum, qui pronuntiasset servum viginti dare iussum, condicionem excepisse, quae esset in dando. 4Servus rationibus redditis liber esse iussus est: hunc heres tradidit et dixit centum dare iussum. si nulla reliqua sunt quae servus dare debeat et per hoc adita hereditate liber factus est, obligatio evictionis contrahitur, eo quod liber homo tamquam statuliber traditur. si centum in reliquis habet, potest videri heres non esse mentitus, quoniam rationes reddere iussus intellegitur summam pecuniae quae ex reliquis colligitur iussus dare: cui consequens est, ut, si minus quam centum in reliquis habuerit, veluti sola quinquaginta, ut, cum eam pecuniam dederit, ad libertatem pervenerit, de reliquis quinquaginta actio ex empto competat. 5Sed et si quis in venditione statuliberum perfusorie dixerit, condicionem autem libertatis celaverit, empti iudicio tenebitur, si id nescierit emptor: hic enim exprimitur eum, qui dixerit statuliberum et nullam condicionem pronuntiaverit, evictionis quidem nomine non teneri, si condicione impleta servus ad libertatem pervenerit, sed empti iudicio teneri, si modo condicionem, quam sciebat praepositam esse, celavit: sicuti qui fundum tradidit et, cum sciat certam servitutem deberi, perfusorie dixerit: ‘itinera actus quibus sunt utique sunt, recte recipitur’, evictionis quidem nomine se liberat, sed quia decepit emptorem, empti iudicio tenetur. 6In fundo vendito cum modus pronuntiatus deest, sumitur portio ex pretio, quod totum colligendum est ex omnibus iugeribus dictis.
Scævola, Questions, Book II. Where the vendor reserves the question of freedom in the sale of a slave, he will not be liable on the ground of eviction, if at the time that the slave was delivered he should become free, or should obtain his liberty when a condition prescribed by will is fulfilled. 1Where a vendor, in delivering a slave, states that he is to be free on a certain condition, it is understood that only the kind of freedom is referred to which can result from the fulfillment of a condition already prescribed by a will, and therefore if freedom was conferred at once by the will, and the vendor says that the slave will be liberated under a condition, he will be liable in case of eviction. 2On the other hand, where anyone sells a slave who has the prospect of freedom, and states the condition under which he will be entitled to be free, and in doing so causes his condition to be considered worse, because he would not be held to have excepted every condition under which the slave would be free, but only that which he indicated; as, for instance, if anyone should say that the slave was ordered to pay ten aurei to become free, and he should obtain his liberty after the lapse of a year, because his freedom had been granted in the following terms: “Let Stichus be free after a year,” the vendor will be liable in case of eviction. 3But what if a slave whom the vendor had declared would be free on the payment of twenty aurei had been, in fact, ordered to pay ten; would the vendor be considered to have told a falsehood with reference to the condition? It is true that he made a false statement with reference to the condition, and therefore certain jurists have held that, in this instance also, the stipulation would become operative in case of eviction. The authority of Servius, however, prevailed, who thought that under these circumstances an action on purchase would lie; because it was his opinion that he who stated that the slave had been ordered to pay twenty aurei had excepted the condition which depended upon the payment. 4A slave was ordered to be free after his accounts had been rendered; the heir sold and delivered him, and stated that he had been directed to pay a hundred aurei for his freedom. If nothing remained which the slave was obliged to pay when he rendered his accounts, he therefore became free as soon as the estate was entered upon, and liability for eviction was contracted for the reason that a man who was free was sold as one whose liberty was dependent on a condition. If the slave was a defaulter to the amount of a hundred aurei, it may be held that the heir did not tell a falsehood; and as the slave was ordered to render his accounts, it is understood that he was directed to make good the amount of money collected which remained unpaid. The result of this is, that, if he was in default for less than a hundred aurei, for example, only fifty, so that he would obtain his freedom when he paid this sum, the purchaser will be entitled to an action on sale to recover the remaining fifty aurei. 5Where anyone, at the time of the sale, states indefinitely that a slave will be conditionally free, but conceals the condition of his freedom, he will be liable to an action on sale if the purchaser is not aware of the fact; for, in this instance, it is settled that he who says that a slave has a prospect of freedom, and does not mention any condition, will indeed not be liable on the ground of eviction, if the condition is fulfilled, and the slave obtains his freedom; but he will be liable to an action on sale provided he concealed the condition which he knew had been prescribed; just as where a party sells a tract of land, and being aware that a certain servitude was due from it, stated indefinitely, “that all rights of way of every description would continue to be enjoyed by those entitled to them,” is properly held to have released himself from liability for eviction, but, because he deceived the purchaser, he will be liable to an action on sale. 6Where the amount stated to be included in a tract of land which is sold falls short, a part of the price is deducted in proportion to the value of all the jugera which the land was alleged to contain.
Dig. 24,3,43Scaevola libro secundo quaestionum. Si maritus in id quod facere potest condemnatus sit et nomina sint ad dotis quantitatem neque amplius, necesse habebit mandare actiones.