Ulpianus, On Sabinus, Book XXIX. A servitude providing against obstructing a view also exists.

Ad Dig. 8,2,15Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 465, Note 6a.Ulpianus, On Sabinus, Book XXIX. Different rules are observed with reference to servitudes which provide against obstructing lights, or impeding the view; because with reference to the view, as the dominant owner has a greater interest in having a pleasant and unobstructed prospect; but, so far as the lights are concerned, nothing must be done by which they may be obscured, and therefore whatever the servient owner does to this end can be prohibited, if a servitude exists; and notice of a new structure can be served upon him, provided he acts in such a way as to obstruct the light.

Ulpianus, On Sabinus, Book XXIX. Where anyone plants a tree so as to interfere with the light, it may be stated with perfect propriety that he acts in opposition to a servitude which has been imposed; for even a tree renders the sky less plainly visible. Where, however, what is placed there does not at all interfere with the light, but only cuts off the rays of the sun; if this is done in a place where it was more pleasant to be without it, it can be said that no act has been committed in violation of the servitude; but if it is done so as to cut off the sunshine from a room, or from a sundial, it must be said that, by producing shade in a place where sunshine was necessary, he acts in violation of the servitude imposed. 1On the other hand, if a man removes the building or the branches of a tree, by which a place which was formerly shady becomes exposed to the sun, he does not violate the servitude; for he must act in such a way as not to obstruct the light, and in this instance he does not obstruct it, but he causes too much light. 2Sometimes, however, it may be said that even where a party removes or lowers a building, he still obstructs the light; if for instance, the light entered into a house by reflection or repercussion, or in some other way. 3The following clause with reference to delivery: “The dripping from the roof to remain as it is at present”; means that the neighbors are required to allow the dripping of water from the roof, but not to the extent that the purchaser is to tolerate it from neighboring buildings; and therefore the vendor alleges that he is entitled to a servitude of the dripping of water from a roof but is not subject to this so far as anyone else is concerned. 4What has been stated here with reference to the dripping of water from a roof, must be understood to apply to all other servitudes also, if nothing to the contrary has been expressly agreed upon.

The Same, On Sabinus, Book XXIX. Where a man who has received anything as a loan only uses it for the purpose for which he borrowed it, he will certainly not have to pay anything if he renders the article in no respect worse, through his own negligence; for if he does render it worse through his negligence, he will be liable. 1If I give an article to some one to enable him to examine it, the question arises whether he occupies the same legal position as one to whom property is lent? If, indeed, I gave it to him on my own account, because I wished him to ascertain its value, he will only be responsible to me for fraud; but if I gave it to him on his own account, he will also be responsible for its safe-keeping, and hence he will be entitled to an action for theft. But if the article is lost while it is being returned, and I had directed him as to the party by whom he should return it, the risk will be mine; but if he committed it to the care of some one whom he himself selected, he will also be responsible to me for negligence, if he received it on his own account;

Ulpianus, On Sabinus, Book XXIX. But if he received it on my account, he will be responsible only for fraud. 1A slave who was sent to ask for an article which had been loaned, ran away after he had received it. If his master had directed that it should be given to him, he must sustain the loss; but if he sent the slave for the purpose of notifying the borrower to return the article lent, the party to whom it was lent will be responsible for the loss.

Ulpianus, On Sabinus, Book XXIX. If the servitude of a water-course is attached to a field, the right to take the water passes to the purchaser, even though nothing had been said with reference to it; just as the pipes through which the water is conducted also do,

Ulpianus, On Sabinus, Book XXIX. And even though the right to take the water does not follow, for the reason that it has been lost; still, the pipes and the ditches, so long as they are connected, belong to the purchaser as a part of the premises. This Pomponius also stated in the Tenth Book.

Ad Dig. 21,2,17Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 172a, Note 2.Ulpianus, On Sabinus, Book XXIX. No one doubts that a vendor who attempts to recover property which he himself has sold can be barred by an exception on the ground of fraud, even though he may have obtained ownership of it under another title; for he is dishonorably attempting to obtain property which has been disposed of by him. Moreover, the vendor should determine whether he prefers to retain the property by arresting the proceedings by means of an exception; or, if he has been deprived of the property, bring an action for double damages under the stipulation.

Ulpianus, On Sabinus, Book XXIX. Where, however, no stipulation was entered into, we hold the same opinion with reference to an action on purchase. 1Where a freeman, who was serving Titius in good faith as a slave, is sold to me, and Titius makes him his heir, as if he was free, and he joins issue with me on this account; I will be entitled to hold him liable as the heir of Titius.

Ulpianus, On Sabinus, Book XXIX. Where a slave, who has been sold, dies before he is recovered by someone having a better title, the stipulation does not become operative, because no one recovered him, and what occurred is but the fate of mankind. Still, if any fraud existed, the purchaser can bring an action on that ground. 1Hence Julianus very properly lays down in the Forty-third Book that the stipulation for double damages becomes operative whenever the property is lost in such a way that the purchaser will not be entitled to it on account of the eviction itself. 2Therefore, he says where a controversy arises with reference to the ownership of a slave, and the purchaser appoints the vendor his agent, and the latter having been defeated, becomes liable for damages; the stipulation for double the amount does not become operative, because the vendor, who is at the same time an agent of the purchaser, has no right of action on mandate to enable him to recover the amount of the damages from the purchaser. Hence, since the purchaser has lost neither property nor money, there is no necessity for the stipulation to be enforced; although, if he had been defeated after issue had been joined, and had paid the damages assessed, it is held that the stipulation would become operative; and this Julianus himself stated in the same book, for the buyer is not considered to have in his possession a slave of whom he would have been deprived by his adversary if he had not paid the price. For the buyer acquires the right to the slave rather through the second purchase, that is to say, through the payment of his estimated value in court, than by the first transaction. 3Julianus also says in the same book, that if, where issue has been joined in a case, and the slave escapes through the negligence of the possessor, the latter should have judgment rendered against him; but he cannot immediately have recourse to the vendor, and must proceed under the stipulation for double damages, because, in the meantime, he was not entitled to the slave through having security against eviction, but on account of his flight. It is evident, he says, that when he obtained possession of the fugitive, the stipulation became operative. For if the slave had escaped without the fault of the possessor, he would then be released, if security was given, and the stipulation would not become operative, unless he should restore the slave after he had been caught. Therefore, where he tenders the amount of damages, this will be sufficient to enable him to hold the slave, but where he gives security, this cannot be done before he returns him.

Ulpianus, On Sabinus, Book XXIX. Where, however, the land is lost by eviction after the death of the woman, recourse must be had to the stipulation for double damages, because the husband can bring an action based on the promise of the dowry, against the heirs of the woman, and they themselves can proceed on the ground of the stipulation.

Ad Dig. 21,2,25ROHGE, Bd. 11 (1874), Nr. 67, S. 202: Verlust der Redhibitionsbefugnis durch Veräußerung, Verbrauch, Verfügung über die gekaufte Sache.ROHGE, Bd. 16 (1875), Nr. 81, S. 321: Folgen der Verarbeitung bezw. Umgestaltung eines Theils der gekauften Waare mit erkennbarem Fehler bezüglich der Redhibitionsbefugnis.Ulpianus, On Sabinus, Book XXIX. If you manumit a slave on whose account you have stipulated for double damages, you can recover nothing on account of the stipulation; because you are not deprived of anything to which you are entitled, since you yourself have voluntarily relinquished it.

Ulpianus, On Sabinus, Book XXIX. A delivery of property should not and cannot transfer any more right in the same to him who receives it than he who delivers it possessed. Therefore, anyone who owns land, can transfer it by delivery; but if he did not have the ownership of the same, he does not convey anything to him who receives it. 1When the ownership is transferred to him who receives it, it is transferred in the same condition that it was while in the possession of the grantor. If it is subject to a servitude, it passes with the servitude; if it is free, it passes in that condition; and if servitudes are due to the land which is transferred, it is conveyed together with the rights to the servitudes imposed for its benefit. Hence if anyone should allege that certain land is free, and he delivers a tract which is charged with a servitude, he diminishes nothing of the right of the servitude attaching to the said land, but he, nevertheless, binds himself, and must furnish what he agreed to do. 2Ad Dig. 41,1,20,2Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 155, Note 6.If Titius and myself purchase property, and delivery of it is made to Titius individually, and also as my agent, I think that the property is also acquired by me, because it is established that possession of every kind of property, and consequently the ownership of the same, can be obtained through the agency of a person who is free.

Ad Dig. 41,3,26Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 223, Note 14.Ulpianus, On Sabinus, Book XXIX. A building can never be acquired by lapse of time separate from the ground on which it stands.

Ulpianus, On Sabinus, Book XXIX. He who was interested in not having the property stolen is entitled to an action for theft.

Ulpianus, On Sabinus, Book XXIX. Therefore, a fuller who has received clothing for the purpose of mending and cleaning it has always a right of action, as he is responsible for its safe-keeping. If, however, he is not solvent, the owner of the property can bring suit, for he who has nothing to lose sustains no risk. 1The action of theft is not granted to a possessor in bad faith—although he is interested in not having the property stolen—for the reason that it is at his risk. No one can acquire a right of action based upon dishonesty, and therefore the action of theft is only granted to a bona fide possessor, and not to one who holds the property in bad faith. 2If the stolen article has been given in pledge, we also grant an action for theft to the creditor, although it does not constitute part of his property. Further, not only do we grant the action of theft against a stranger, but also against the owner of the property himself; as Julianus stated. It is established that it also is granted to the owner, and, consequently, he is not liable to the action for theft, but he can bring it. It is granted to both parties, because both are interested; but is the creditor always interested, or is this only the case when the debtor is insolvent? Pomponius thinks that it is always to his interest to have the pledge, which opinion Papinianus adopts in the Twelfth Book of Questions. It is better to say that this appears at all times to be the interest of the creditor; and this was frequently stated by Julianus.

Ulpianus, On Sabinus, Book XXIX. Where property which has been bought is not delivered to the person who purchased it, Celsus says that he will not be entitled to an action for theft, but that the vendor can bring this action. It will certainly be necessary for him to direct the purchaser to bring the action for theft, as well as the personal action, and the one to recover the property, and if anything is obtained by means of these proceedings, he must deliver it to the purchaser; which opinion is correct, and is accepted by Julianus. It is clear that the risk of the property must be assumed by the purchaser, provided the vendor had charge of it before he delivered it. 1Moreover, the purchaser is not entitled to an action for theft before delivery, and the question has been asked whether the purchaser himself, if he should steal the property, is liable to an action for theft? Julianus, in the Twenty-third Book of the Digest, says that if a purchaser, after having paid the price of the property, steals it, and the vendor has guaranteed its safe-keeping, he will not be liable to an action for theft. It is clear, however, that if he should steal the property before paying the money, he will be liable to an action for theft, just as if he had stolen a pledge. 2Again, tenants on land, although they are not the owners of the property, but because they have an interest in it, can bring an action of theft. 3Let us next examine whether the person with whom the property was deposited is entitled to an action for theft. As he gives a guarantee against fraud, it is held with reason that he is not entitled to an action for theft; for what interest has he if he has not been guilty of fraud? If he has acted fraudulently, the property is at his risk, but he ought not to ask for an action for theft on the ground that he has been guilty of fraud. 4Julianus, in the Twenty-second Book of the Digest, also says that, because it has been settled with reference to all thieves, that they cannot bring an action for theft on account of the property which they themselves have stolen; neither can he, with whom property has been deposited, bring an action for theft, although he has begun to be responsible for the property, if he has handled it with the intention of stealing it. 5Papinianus discusses the point that if I should receive two slaves in pledge for ten aurei, and one of them should be stolen, and the other that was left was not worth less than ten aurei, whether I will only be entitled to an action for theft to the amount of five aurei, for the reason that I am sure of the other five in the person of the remaining slave; or, indeed, because the latter may die, it should be held that I am entitled to an action for ten, even if the remaining slave is of great value. I incline to the latter opinion, for we should not consider the pledge which was not taken, but the one which was stolen. 6He also said that if ten aurei are due me, and a slave given in pledge for them has been stolen, and I have recovered ten aurei by an action for theft, I will not be entitled to another action for theft if the slave should be stolen a second time, because I have ceased to have an interest when I have once obtained that which was due me. This is the case where the theft was committed without any fault of mine, for if I was to blame, as I had an interest because I would be liable in an action on pledge, I can bring the action for theft. If, however, I was not to blame, it appears that there is no doubt that an action will lie in favor of the owner of the property, which will not be granted to the creditor. This opinion Pomponius approves in the Tenth Book on Sabinus. 7The same authorities assert that if two slaves are stolen at the same time, the creditor will be entitled to an action for theft on account of both of them; not for the entire sum, but to the extent of his interest estimated by dividing the amount which is due to him with reference to each of the slaves. If, however, the two slaves should be stolen separately, and the creditor has collected the entire amount on account of one of them, he can recover nothing on account of the other. 8Pomponius, in the Tenth Book on Sabinus, also says that if he to whom I have lent something for use, commits fraud with reference to the property loaned, he cannot bring the action for theft. 9Pomponius holds the same opinion with reference to a person who, by the direction of someone, has received the property for transportation. 10The question arises whether a father is entitled to an action for theft when property has been lent for use to his son. Julianus says that a father cannot bring the action under these circumstances, because he should not be responsible for the safe-keeping of the property; just as he says that anyone who becomes surety for someone to whom property is loaned for use is not entitled to an action for theft. For he holds that not everyone, without distinction, to whose interest it is that the property should not be lost, is entitled to an action for theft; but only he who is liable because it was his fault that the same property has been destroyed. Celsus, also, approves this opinion in the Twelfth Book of the Digest. 11Is a man who has acquired a slave by a precarious tenure entitled to an action for theft if the slave is stolen, is a question which may be asked. And, as a civil suit cannot be brought against him, because property held by a precarious tenure resembles a donation, and therefore an interdict appears to be necessary, he will have no right to an action for theft. I think, after an interdict has been granted, it is clear that he ought to offer a guarantee against negligence, and hence he can bring an action for theft. 12Where anyone has leased property, he will be entitled to an action for theft, provided it was stolen through his negligence. 13Where a son under paternal control is stolen, it is evident that his father can bring an action for theft. 14If property should be loaned for use, and he to whom it was loaned should die, although theft cannot be committed against an estate, and therefore the heir of the person to whom the article was lent cannot institute proceedings, still, the lender can bring the action for theft. The same rule applies to property which has been pledged or hired, for although the action for theft is not acquired by an estate, still it is acquired by the parties interested in the same. 15The action for theft not only lies in favor of him to whom the property was lent, on account of said property, but also on account of anything connected with it, because he was responsible for its safe-keeping. For if I lend you a slave for use, you can bring an action for stealing his clothing, although I did not lend you the garments which he wore. Likewise, if I lend you beasts of burden, and a colt is following one of them, I think that an action for theft will lie for stealing the colt, although it was not included in the loan. 16The question arose, what then is the nature of the action for theft which is granted to the person to whom property was lent for use? I think that actions for theft will lie in favor of all those who are responsible for the property of others, whether it is lent for use, leased, or pledged, provided it is stolen; but a personal action will only lie in favor of him who is the owner. 17Ad Dig. 47,2,14,17Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 401, Note 2.If a letter which I have sent to you should be intercepted, who will have a right to bring the action for theft? And, in the first place, it must be ascertained to whom the letter belonged, whether to the person who sent it, or to him to whom it was despatched. If I gave it to a slave of him to whom it was sent, it was immediately acquired by the latter. If I gave it to his agent, this is also the case, because, as possession can be acquired by means of a free person, the letter immediately became his property; and this is especially true if he was interested in having it. If, however, I sent a letter which was to be returned to me, it will remain mine, because I was unwilling to relinquish or transfer the ownership of it. Who then can bring the action for theft? He can do so who is interested in not having the letter stolen, that is to say, the individual who was benefited by what it contained. Therefore, it may be asked whether he, also, can bring the action for theft to whom the letter was given in order to be conveyed to its destination. He can do so if he was responsible for the safe-keeping of the letter, and if it was to his interest to deliver it he will be entitled to an action for theft. Suppose that the letter stated that something should be delivered to him, or done for him; he can then bring an action for theft, if he assumed responsibility for its delivery, or received a reward for carrying it. In this instance, he resembles an inn-keeper, or the master of a ship; for we grant them an action for theft, if they are solvent, as they are responsible for property.

Ad Dig. 50,17,23BOHGE, Bd. 2 (1871), S. 293: Ungilitigkeit des im voraus erklärten Verzichts auf Schadensersatz aus grobem Versehen.ROHGE, Bd. 4 (1872), S. 81: Ungilitigkeit des im voraus erklärten Verzichts auf Schadensersatz aus grobem Versehen.ROHGE, Bd. 25 (1880), Nr. 42, S. 181: Konnossamentsklausel, für Dolus der Schiffsbesatzung nicht zu haften.The Same, On Sabinus, Book XXIX. Certain contracts only involve fraud, others involve both fraud and negligence. Those which involve fraud are deposits and transfers under a precarious title; those which involve both fraud and negligence are mandate, loan for use, sale, pledge, hiring, and also the bestowal of dowry, guardianship, and the transaction of business. (The two last, however, demand extraordinary diligence.) Partnership and joint-ownership of property involve both fraud and negligence. This, however, is the case only where nothing has been expressly agreed upon for either more or less in the different contracts; for what was agreed upon in the beginning must be observed, since the contract imposes a law; except where, as Celsus says, the contract would not be valid if it was agreed that no fraud should be committed, for this is contrary to the good faith attaching to contracts; and this is our present practice. No responsibility, however, is assumed in the case of accidents to animals, or their death, or to anything else that happens which is not due to negligence; or with reference to the flight of slaves whom it was not customary to guard, robbers, tumults, fires, inundations, and the attacks of thieves.