Corpus iurisprudentiae Romanae

Repertorium zu den Quellen des römischen Rechts
Dig. XXI2,
De evictionibus et duplae stipulatione
Liber vicesimus primus
II.

De evictionibus et duplae stipulatione

(Concerning Evictions, and the Stipulation for Double Damages.)

1 Ulpianus libro vicesimo octavo ad Sabinum. Sive tota res evincatur sive pars, habet regressum emptor in venditorem. sed cum pars evincatur, si quidem pro indiviso evincatur, regressum habet pro quantitate evictae partis: quod si certus locus sit evictus, non pro indiviso portio fundi, pro bonitate loci erit regressus. quid enim, si quod fuit in agro pretiosissimum, hoc evictum est, aut quod fuit in agro vilissimum? aestimabitur loci qualitas, et sic erit regressus.

1 Ulpianus, On Sabinus, Book XXVIII. Where a purchaser loses the entire property which he bought or only a part of it, on account of a better title, he has recourse to the vendor. Where he loses a portion of it, or an undivided part of land, he has recourse for the amount which he has lost. If, however, he loses a certain portion of the tract, and not an undivided share of the same, he is entitled to recourse according to the quality of the land of which he has been deprived. But what if he should be deprived of either the best, or the worst part of the land? The quality of the land should be ascertained, and he will be entitled to recourse in proportion to its value.

2 Paulus libro quinto ad Sabinum. Si dupla non promitteretur et eo nomine agetur, dupli condemnandus est reus.

2 Paulus, On Sabinus, Book V. If double damages are not promised, and an action is brought on the ground of eviction; judgment for double damages should be rendered against the defendant.

3 Idem libro decimo ad Sabinum. Cum in venditione servi peculium semper exceptum esse intellegitur, is homo ex peculio summam quandam secum abstulerat. si propter hanc causam furti cum emptore actum sit, non reverteretur emptor ad venditorem ex stipulatione duplae, quia furtis noxisque solutum esse praestari debet venditionis tempore, haec autem actio postea esse coeperit.

3 The Same, On Sabinus, Book X. In the sale of a slave, his peculium is always understood to be reserved. Where a slave who was sold took away with him a certain portion of his peculium, and an action of theft is brought against the purchaser on this account, the latter cannot have recourse to the vendor for double damages on the ground of a stipulation, because the vendor, at the time of the sale, should guarantee the slave to be free from liability for theft, or damage. This right of action, however, only originates after the sale has taken place.

4 Ulpianus libro trigesimo secundo ad edictum. Illud quaeritur, an is qui mancipium vendidit debeat fideiussorem ob evictionem dare, quem volgo auctorem secundum vocant. et est relatum non debere, nisi hoc nominatim actum est. 1Si impuberis nomine tutor vendiderit, evictione secuta Papinianus libro tertio responsorum ait dari in eum cuius tutela gesta sit utilem actionem, sed adicit in id demum, quod rationibus eius accepto latum est. sed an in totum, si tutor solvendo non sit, videamus: quod magis puto: neque enim male contrahitur cum tutoribus.

4 Ulpianus, On the Edict, Book XXXII. The question arises whether he who sold the slave should give a surety against eviction, who is commonly called a second surety. It has been settled that he need not do so, unless it has been agreed upon. 1Where a guardian makes a sale in the name of a minor, and eviction follows, Papinianus says in the Third Book of Opinions that an equitable action will be granted against him for whose benefit the guardianship is being administered. He adds, however, that this only applies to what was included in his property at the time. Let us see whether the ward will be liable for the entire amount if the guardian should not be solvent. This I think to be the better opinion, for a contract made with a guardian is not void.

5 Paulus libro trigesimo tertio ad edictum. Servi venditor peculium accessurum dixit. si vicarius evictus sit, nihil praestaturum venditorem Labeo ait, quia sive non fuit in peculio, non accesserit, sive fuerit, iniuriam a iudice emptor passus est: aliter atque si nominatim servum accedere dixisset: tunc enim praestare deberet in peculio eum esse.

5 Paulus, On the Edict, Book XXXIII. The vendor of a slave stated that his peculium was an accessory. If a sub-slave was taken away by eviction, Labeo says that the vendor will not be liable on this account, for if the slave did not form part of the peculium he would not constitute an accessory, but if he did, the purchaser sustained an injury through the decision of the judge; but the case is different if the vendor had expressly stated that the slave was an accessory, for, in this instance, he would be obliged to guarantee that the slave borrowed part of the peculium.

6 Gaius libro decimo ad edictum provinciale. Si fundus venierit, ex consuetudine eius regionis in qua negotium gestum est pro evictione caveri oportet.

6 Gaius, On the Provincial Edict, Book X. Where a tract of land is sold, it is necessary to furnish security against eviction, according to the custom of that part of the country where the transaction took place.

7 Iulianus libro tertio decimo digestorum. Qui a pupillo substitutum ei servum emerit, agere cum substituto ex empto potest et ex stipulatu de evictione, cum neutram earum actionum adversus pupillum habere potuerit.

7 Julianus, Digest, Book XIII. Where a party buys from a ward a slave who was substituted for him, he can bring an action on purchase against the substitute, as well as one under the stipulation on the ground of eviction; but he will be entitled to neither of these actions against the ward himself.

8 Idem libro quinto decimo digestorum. Venditor hominis emptori praestare debet, quanti eius interest hominem venditoris fuisse. quare sive partus ancillae sive hereditas, quam servus iussu emptoris adierit, evicta fuerit, agi ex empto potest: et sicut obligatus est venditor, ut praestet licere habere hominem quem vendidit, ita ea quoque quae per eum adquiri potuerunt praestare debet emptori, ut habeat.

8 The Same, Digest, Book XV. The vendor of a slave must guarantee the purchaser to the amount of the interest that the latter had that the slave should belong to the vendor. Wherefore, if the purchaser should lose, by eviction, the offspring of a female slave or an estate which the slave had entered upon by his order, he can bring an action on purchase. And just as the vendor is bound to deliver to him the slave which he sold him, so he is bound to make good to the purchaser everything that he could have acquired through the slave, if he had not been deprived of him.

9 Paulus libro septuagesimo sexto ad edictum. Si vendideris servum mihi Titii, deinde Titius heredem me reliquerit, Sabinus ait amissam actionem pro evictione, quoniam servus non potest evinci: sed in ex empto actione decurrendum est.

9 Paulus, On the Edict, Book LXXVI. If you should sell me a slave belonging to Titius, and Titius should afterwards appoint me his heir; Sabinus says that, in case of eviction, the right of action is lost, since the slave cannot be taken from me, but that recourse must be had to an action on purchase.

10 Celsus libro vicesimo septimo digestorum. Si quis per fundum quem cum alio communem haberet, quasi solus dominus eius esset, ius eundi agendi mihi vendiderit et cesserit, tenebitur mihi evictionis nomine ceteris non cedentibus.

10 Celsus, Digest, Book XXVII. If anyone should sell and transfer to me a right of way which he has in common with another, as if he were the sole owner of the same, he will be liable to me on the ground of eviction, if the other party refuses to transfer to me his right.

11 Paulus libro sexto responsorum. Lucius Titius praedia in Germania trans renum emit et partem pretii intulit: cum in residuam quantitatem heres emptoris conveniretur, quaestionem rettulit dicens has possessiones ex praecepto principali partim distractas, partim veteranis in praemia adsignatas: quaero, an huius rei periculum ad venditorem pertinere possit. Paulus respondit futuros casus evictionis post contractam emptionem ad venditorem non pertinere et ideo secundum ea quae proponuntur pretium praediorum peti posse. 1Ex his verbis stipulationis duplae vel simplae ‘eum hominem quo de agitur noxa esse solutum’ venditorem conveniri non posse propter eas noxas, quae publice coerceri solent.

11 Paulus, Opinions, Book VI. Lucius Titius bought lands in Germany, beyond the Rhine, and paid a portion of the purchase-money. When suit was brought against the heir of the purchaser for the remainder, the latter set up a counterclaim alleging that these possessions had been partially sold by order of the Emperor, and partly distributed as rewards among veteran soldiers. I ask whether this risk must be assumed by the vendor? Paulus answered that future cases of eviction, which occur after the sale has been contracted, do not affect the vendor; and, therefore, according to the facts stated, suit could be brought for the remainder of the price of the land. 1The vendor cannot be sued for either double or simple damages, on account of such offences as are usually punished by public prosecution, where the following words are inserted in a stipulation, namely: “The slave in question is free from liability for damage committed.”

12 Scaevola libro secundo responsorum. Quidam ex parte dimidia heres institutus universa praedia vendidit et coheredes pretium acceperunt: evictis his quaero, an coheredes ex empto actione teneantur. respondi, si coheredes praesentes adfuerunt nec dissenserunt, videri unumquemque partem suam vendidisse.

12 Scævola, Opinions, Book II. A certain individual having been appointed heir to half an estate sold all the land belonging to the same, and his co-heirs accepted the price. The land having been lost by eviction, I ask whether the coheirs will be liable to an action on purchase. I answer that if the coheirs were present, and did not dissent, each one of them was held to have sold his share.

13 Paulus libro quinto ad Sabinum. Bonitatis aestimationem faciendam, cum pars evincitur, Proculus recte putabat, quae fuisset venditionis tempore, non cum evinceretur:

13 Paulus, On Sabinus, Book V. Proculus very justly held that where part of a tract of land is lost by eviction, an estimate of its quality should be made at the time when it was sold, and not when the purchaser was deprived of it;

14 Ulpianus libro octavo decimo ad edictum. non in dimidiam quantitatem pretii:

14 Ulpianus, On the Edict, Book XVIII. And that half of the amount of the price should not merely be taken into consideration.

15 Paulus libro quinto ad Sabinum. sed si quid postea alluvione accessit, tempus quo accedit inspiciendum. 1Si usus fructus evincatur, pro bonitate fructuum aestimatio facienda est. sed et si servitus evincatur, quanti minoris ob id praedium est, lis aestimanda est.

15 Paulus, On Sabinus, Book V. If, however, the land subsequently received any accession by way of alluvial deposit, the time when this took place should be taken into account. 1Where an usufruct is lost by eviction, an estimate should be made of the value of the crops. Where, however, a slave is lost to the purchaser by eviction, the extent to which the land is diminished in value on this account must be estimated in court.

16 Pomponius libro nono ad Sabinum. Evicta re vendita ex empto erit agendum de eo quod accessit, quemadmodum ea quae empto fundo nominatim accesserunt si evicta sint, simplum praestatur. 1Duplae stipulatio committi dicitur tunc, cum res restituta est petitori, vel damnatus est litis aestimatione, vel possessor ab emptore conventus absolutus est. 2Si servus, cuius nomine duplam stipulati sumus, evictus fuerit a nobis: ob id quod fugitivus vel sanus non fuerit an agere nihilo minus possimus, quaeritur. Proculus videndum ait, ne hoc quoque intersit, utrum tum evictus sit, cum meus factus non esset, an tum cum meus factus esset: in eo enim casu quo meus factus est statim mea interest, quanto ob id deterior est, et quam actionem semel ex stipulatu habere coepi, eam nec evictione nec morte nec manumissione nec fuga servi nec ulla simili causa amitti: at si in bonis meis factus non sit, nihil ob ea quod fugitivus sit pauperior sim, utpote cum in bonis meis non sit. quod si sanum esse, erronem non esse stipulatus essem, tantum mea interesse, quantum ad praesentem usum pertineret, tametsi in obscuro esset (utpote ignorantibus nobis, quamdiu eum habiturus essem et an futurum esset, ut eum quisquam aut a me aut ab eo cui vendidissem cuive similiter promississem evinceret). summam autem opinionis suae hanc esse, ut tantum ex ea stipulatione consequar, quanti mea intersit aut post stipulationem interfuerit eum servum fugitivum non esse.

16 Pomponius, On Sabinus, Book IX. Where the property sold has been recovered by anyone having a better title, an action on purchase can be brought with reference to anything which has been added to it, just as where those things which are expressly stated to be accessories to land which is purchased must simply be made good by the vendor if they are lost by eviction. 1A stipulation for double damages is said to be operative at the time the property is restored to the claimant; or where he has judgment rendered against him for the value of the property; or when the possessor, having been sued by the purchaser, is released. 2Where a slave, on account of whom we have stipulated for the payment of double damages is lost by us because of his being a fugitive, or not being sound; the question arises can we, nevertheless, institute proceedings? Proculus says that it should be considered whether a difference does not exist where he was not mine at the time eviction took place, and where he had become mine at that time; for, in the case where he became my property, I immediately acquired an interest in the amount to which he was deteriorated, for this reason; and I at once acquired a right of action on the stipulation, which I cannot lose either by eviction, or by the death, manumission, or flight of the slave, or for any other similar reason. But if he had not become part of my property, I am none the poorer, because the slave is a fugitive; since he was not included in my estate. If, however, I stipulated that he was sound, and not accustomed to wander about, my interest only has reference to the present use, although it may be undetermined; just as if it was unknown how long I should have him, and whether anyone would recover him by eviction either from me, or from the person to whom I sold him and to whom I likewise gave a guarantee. The conclusion of Proculus is that I could only be sued on the stipulation after it had become operative, to the extent of my interest that the said slave should not be in the habit of running away.

17 Ulpianus libro vicesimo nono ad Sabinum. Vindicantem venditorem rem, quam ipse vendidit, exceptione doli posse summoveri nemini dubium est, quamvis alio iure dominium quaesierit: improbe enim rem a se distractam evincere conatur. eligere autem emptor potest, utrum rem velit retinere intentione per exceptionem elisa, an potius re ablata ex causa stipulationis duplum consequi.

17 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.

18 Paulus libro quinto ad Sabinum. Sed et si exceptio omissa sit aut opposita ea nihilo minus evictus sit, ex duplae quoque stipulatione vel ex empto potest conveniri.

18 Paulus, On Sabinus, Book V. Even though an exception may not have been pleaded, or if, having been successfully opposed, the purchaser is, nevertheless, evicted; the vendor can still be sued for double damages under the stipulation, for an action on purchase can be brought against him.

19 Ulpianus libro vicesimo nono ad Sabinum. Sed et si stipulatio nulla fuisset interposita, de ex empto actione idem dicemus. 1Si homo liber qui bona fide serviebat venierit mihi a Titio Titiusque eum heredem scripserit quasi liberum et ipse mihi sui faciat controversiam, ipsum de se obligatum habebo.

19 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.

20 Pomponius libro decimo ad Sabinum. Fundum meum obligavi, deinde alienavi tibi: ut eo nomine non obligeris, si eum postea abs te emam et satis pro evictione mihi des, excipiendum cautione, quod pro me obligatus sit, quia etiam non excepto eo agendo eo nomine contra te doli mali exceptione possim summoveri.

20 Pomponius, On Sabinus, Book X. I encumbered a tract of land belonging to me, and afterwards sold it to you under the condition that you would not encumber it. If I should afterwards purchase the said land from you, and you execute a bond to me providing against eviction, it should be stated in the bond that the land was encumbered on my account, because if this is not done, and I bring an action against you on this ground I can be barred by an exception based on fraud.

21 Ulpianus libro vicesimo nono ad Sabinum. Si servus venditus decesserit antequam evincatur, stipulatio non committitur, quia nemo eum evincat, sed factum humanae sortis: de dolo tamen poterit agi, si dolus intercesserit. 1Inde Iulianus libro quadragesimo tertio eleganter definit duplae stipulationem tunc committi, quotiens res ita amittitur, ut eam emptori habere non liceat propter ipsam evictionem. 2Et ideo ait, si emptor hominis mota sibi controversia venditorem dederit procuratorem isque victus litis aestimationem sustulerit, stipulationem duplae non committi, quia nec mandati actionem procurator hic idemque venditor habet, ut ab emptore litis aestimationem consequatur: cum igitur neque corpus neque pecunia emptori absit, non oportet committi stipulationem: quamvis, si ipse iudicio accepto victus esset et litis aestimationem sustulisset, placeat committi stipulationem, ut et ipse Iulianus eodem libro scripsit. neque enim habere licet eum, cuius si pretium quis non dedisset, ab adversario auferretur: prope enim hunc ex secunda emptione, id est ex litis aestimatione emptori habere licet, non ex pristina. 3Idem Iulianus eodem libro scribit, si lite contestata fugerit homo culpa possessoris, damnatus quidem erit possessor, sed non statim eum ad venditorem regressurum et ex duplae stipulatione acturum, quia interim non propter evictionem, sed propter fugam ei hominem habere non licet: plane, inquit, cum adprehenderit possessionem fugitivi, tunc committi stipulationem Iulianus ait. nam et si sine culpa possessoris fugisset, deinde cautionibus interpositis absolutus esset, non alias committeretur stipulatio, quam si adprehensum hominem restituisset. ubi igitur litis aestimationem optulit, sufficit adprehendere: ubi cavit, non prius, nisi restituerit.

21 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.

22 Pomponius libro primo ex Plautio. Si pro re pupilli quam emit litis aestimationem tutor non ex pecunia pupilli, sed ex suo praestiterit, stipulatio de evictione pupillo adversus venditorem committitur. 1Si pro evictione fundi quem emit mulier satis accepisset et eundem fundum in dotem dedisset, deinde aliquis eum a marito per iudicium abstulisset, potest mulier statim agere adversus fideiussores emptionis nomine, quasi minorem dotem habere coepisset vel etiam nullam, si tantum maritus optulisset, quanti fundus esset.

22 Pomponius, On Plautius, Book I. Where a guardian pays damages assessed on account of property purchased for his ward, not out of the money belonging to the latter, but out of his own property; a stipulation against eviction becomes operative in favor of the ward as against the vendor. 1Where a woman takes security against eviction from a tract of land which she purchased, and gives the same land by way of dowry, and someone afterwards deprives her husband of it by means of an action; the woman can immediately proceed against the surety on the ground of purchase, as having reduced the amount of her dowry, or rendered it worthless; provided the husband tendered to the claimant the value of the said property.

23 Ulpianus libro vicesimo nono ad Sabinum. Sed et si post mortem mulieris evincatur, regressus erit ad duplae stipulationem, quia ex promissione maritus adversus heredes mulieris agere potest et ipsi ex stipulatu agere possunt.

23 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.

24 Africanus libro sexto quaestionum. Non tamen ei consequens esse, ut et, si ipsi domino nuptura in dotem eum dederit, committi stipulationem dicamus, quamvis aeque indotata mulier futura sit, quoniam quidem, etiamsi verum sit habere ei non licere servum, illud tamen verum non sit iudicio eum evictum esse. ex empto tamen contra venditorem mulier habet actionem.

24 Africanus, Questions, Book VI. Still, we cannot say that the result will be that the stipulation becomes operative if the woman is about to marry the true owner of the slave, and gives him as dowry, even though she will, in this instance, not have any dowry; since, indeed, while it is true that she has no right to the slave, yet it is not a fact that she has been deprived of him by a judicial proceeding; and she will, nevertheless, be entitled to an action on purchase against the vendor.

25 Ulpianus libro vicesimo nono ad Sabinum. Si servum, cuius nomine duplam stipulatus sis, manumiseris, nihil ex stipulatione consequi possis, quia non evincitur, quo minus habere tibi liceat, quem ipse ante voluntate tua perdideris.

25 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.

26 Paulus libro quinto ad Sabinum. Sed hoc nomine, quod libertum quis non habeat, ex vendito actionem habet, si scierit venditor alienum se vendere. sed et si ex causa fideicommissi emptor coactus fuerit eum manumittere, ex empto actionem habebit.

26 Paulus, On Sabinus, Book V. The purchaser will be entitled to an action on sale, on the ground that he did not make him his freedman, if the vendor was aware that he was selling a slave belonging to another. Where, however, the purchaser was compelled to manumit the slave on account of a trust, he will be entitled to an action on purchase.

27 Pomponius libro undecimo ad Sabinum. Hoc iure utimur, ut exceptiones ex persona emptoris obiectae si obstant, venditor ei non teneatur, si vero ad personam venditoris respicient, contra: certe nec ex empto nec ex stipulatione duplae nec simplae actio competit emptori, si exceptio ei ex facto ipsius opposita obstiterit.

27 Pomponius, On Sabinus, Book XI. We adopt the rule that where exceptions are interposed against the purchaser, and they prevail, the vendor will not be liable; but where they have reference to the act of the vendor, the contrary rule applies. For it is certain that the purchaser will have no right to an action either on purchase, or under the stipulation for double, or even simple damages, where an exception based on his own act is successfully pleaded.

28 Ulpianus libro octagesimo ad edictum. Sed si ex utriusque persona et auctoris et emptoris exceptiones obicientur, intererit, propter quam exceptionem iudex contra iudicaverit, et sic aut committetur aut non committetur stipulatio.

28 Ulpianus, On the Edict, Book LXXXI. But if exceptions based on the acts of both vendor and purchaser are pleaded, it is a matter of importance to ascertain on account of which exception the judge will render his decision, and hence whether the stipulation is operative or not.

29 Pomponius libro undecimo ad Sabinum. Si rem, quam mihi alienam vendideras, a domino redemerim, falsum esse quod Nerva respondisset posse te a me pretium consequi ex vendito agentem, quasi habere mihi rem liceret, Celsus filius aiebat, quia nec bonae fidei conveniret et ego ex alia causa rem haberem. 1Si duplae stipulator ex possessore petitor factus et victus sit, quam rem si possideret retinere potuerit, peti [ed. maior ita] autem utiliter non poterit, vel ipso iure promissor duplae tutus erit vel certe doli mali exceptione se tueri poterit, sed ita, si culpa vel sponte duplae stipulatoris possessio amissa fuerit. 2Quolibet tempore venditori renuntiari potest, ut de ea re agenda adsit, quia non praefinitur certum tempus in ea stipulatione, dum tamen ne prope ipsam condemnationem id fiat.

29 Pomponius, On Sabinus, Book XI. If you should sell me property belonging to another, and I should repurchase it from the true owner; Celsus, the son, says that the opinion of Nerva is not correct; namely, that you, in bringing an action on sale, can recover the price from me; because I was, as it were, entitled to the property, since it is not agreeable to good faith that I should hold property under a title belonging to someone else. 1Where a stipulator for double damages instead of being the possessor becomes the claimant and loses his case, if he had been in possession of the property he could have retained it, but he cannot legally bring suit to recover it, as the promisor of double damages will be secure by operation of law, or he can undoubtedly protect himself by an exception on the ground of fraud. This, however, is the case only where possession was lost through the negligence, or with the consent of the stipulator for double damages. 2The vendor can be notified to appear at any time whatsoever when the matter is brought up in court, because a certain date is not fixed by this stipulation; provided, however, this is not done before the time that judgment is rendered.

30 Idem libro nono decimo ad Sabinum. Si emptori, qui stipulatus sit furtis noxisque solutum esse, heres exstiterit is, cui servus furtum fecerit, incipit is ex stipulatu actionem habere, quemadmodum si ipse alii praestitisset.

30 The Same, On Sabinus, Book XIX. Where he who stipulated with the purchaser that the slave was free from liability for theft or damages, and he from whom the slave stole the property becomes the heir of the purchaser, he will immediately be entitled to an action under the stipulation, just as if he himself had made good the amount of a theft committed against someone else.

31 Ulpianus libro quadragesimo secundo ad Sabinum. Si ita quis stipulanti spondeat ‘sanum esse, furem non esse, vispellionem non esse’ et cetera, inutilis stipulatio quibusdam videtur, quia si quis est in hac causa, impossibile est quod promittitur, si non est, frustra est. sed ego puto verius hanc stipulationem ‘furem non esse, vispellionem non esse, sanum esse’ utilem esse: hoc enim continere, quod interest horum quid esse vel horum quid non esse. sed et si cui horum fuerit adiectum ‘praestari’, multo magis valere stipulationem: alioquin stipulatio quae ab aedilibus proponitur inutilis erit, quod utique nemo sanus probabit.

31 Ulpianus, On Sabinus, Book XLII. Where anyone makes a promise to the stipulating party “That the slave is sound, is not a thief, is not a violator of graves, etc.,” the stipulation seems to some authorities to be void, because if the slave is of this character what is promised is impossible, and if he is not, the promise is without effect. I think that the following stipulation is more correct, namely: “That the slave is not a thief, is not a violator of graves, and is sound,” and this is in conformity with law, for it contains what it is for the interest of the purchaser of the slave to have and not to have. But if a guarantee is added to any of these statements the stipulation will be still more valid; otherwise the stipulation introduced by the Ædiles will be void, because no rational man would approve of it.

32 Idem libro quadragesimo sexto ad Sabinum. Quia dicitur, quotiens plures res in stipulationem deducuntur, plures esse stipulationes, an et in duplae stipulatione hoc idem sit, videamus. cum quis stipulatur ‘fugitivum non esse, erronem non esse’ et cetera quae ex edicto aedilium curulium promittuntur, utrum una stipulatio est an plures? et ratio facit, ut plures sint. 1Ergo et illud procedit, quod Iulianus libro quinto decimo digestorum scribit. egit, inquit, quanti minoris propter fugam servi, deinde agit propter morbum: id agendum est, inquit, ne lucrum faciat emptor et bis eiusdem vitii aestimationem consequatur. fingamus emptum decem, minoris autem empturum fuisse duobus, si tantum fugitivum esse scisset emptor: haec consecutum propter fugam mox comperisse, quod non esset sanus: similiter duobus minoris empturum fuisse, si de morbo non ignorasset: rursus consequi debebit duo: nam et si de utroque simul egisset, quattuor esset consecuturus, quia eum forte, qui neque sanus et fugitivus esset, sex tantum esset empturus. secundum haec saepius ex stipulatu agi poterit: neque enim ex una stipulatione, sed ex pluribus agitur.

32 The Same, On Sabinus, Book XLVI. For the reason that it is held that, where several matters are set forth in one stipulation, there are several stipulations; let us see whether this applies to one calling for double damages, for example, where anyone stipulates that the slave is not in the habit of running away, and is not a wanderer, and the other things which are mentioned in the Edict of the Curule Ædiles; is there one stipulation, or several, in this instance? It is reasonable to hold that there are several. 1Hence what Julianus states in the Fifteenth Book of the Digest is correct. For he says that, where a purchaser brings an action for the depreciation in value of a slave because he was in the habit of running away, and then brings another on account of some disease with which he was afflicted; care must be taken to prevent the purchaser from obtaining a profit, and recovering damages twice for the same defect. Let us suppose that a slave was purchased for ten aurei, and that the buyer could have acquired him for at least two less, if he had only known that he was in the habit of running away; and, after recovering this sum because of said habit, he afterwards discovers that he is not sound, and that he could have purchased him for two aurei less, if he had been aware that he was diseased. He should, therefore, again recover two aurei, for if he had brought suit at the same time on both causes of action, he could have recovered four, since he could have purchased the slave who was not sound, and who was in the habit of running away, for only six aurei. In accordance to principle, he can proceed frequently under the stipulation, for he does not do so merely on account of one stipulation, but on account of several.

33 Idem libro quinquagesimo primo ad Sabinum. Si servum emero et eundem vendidero, deinde emptori ob hoc fuero condemnatus, quia tradere non potui evictum, committitur stipulatio.

33 The Same, On Sabinus, Book LI. If I purchase a slave and sell him, and afterwards have judgment rendered against me in favor of the purchaser, because I could not deliver the slave on account of eviction, the stipulation becomes operative.

34 Pomponius libro vicesimo septimo ad Sabinum. Si mancipium ita emeris, ne prostituatur et, cum prostitutum fuisset, ut liberum esset: si contra legem venditionis faciente te ad libertatem pervenerit, tu videris quasi manumississe et ideo nullum adversus venditorem habebis regressum. 1Si communi dividundo mecum actum esset et adversario servus adiudicatus sit, quia probavit eum communem esse, habebo ex duplae stipulatione actionem, quia non interest, quo genere iudicii evincatur, ut mihi habere non liceat. 2Duplae stipulatio evictionem non unam continet, si quis dominium rei petierit et evicerit, sed et si Serviana actione experiatur.

34 Pomponius, On Sabinus, Book XXVII. If you buy a female slave on condition that she shall not be prostituted, and if she is she shall become free, and you violate the condition of the sale, the slave will obtain her freedom, and you will be in the same position as if you had manumitted her, and therefore you will have no recourse against the vendor. 1Where proceedings have been instituted against me for the partition of property in a slave, and the latter is adjudged to my adversary for the reason that he proved that the said slave was held in common, I will be entitled to an action for double damages under the stipulation, because it makes no difference by what kind of a judgment eviction is obtained, if I have no right to the property. 2A stipulation for double damages does not merely include eviction where anyone claims and recovers the ownership of property, but also applies where proceedings are instituted under the Servian Action.

35 Paulus libro secundo ad edictum aedilium curulium. Evictus autem a creditore tunc videtur, cum fere spes habendi abscisa est: itaque si Serviana actione evictus sit, committitur quidem stipulatio: sed quoniam soluta a debitore pecunia potest servum habere, si soluto pignore venditor conveniatur, poterit uti doli exceptione.

35 Paulus, On the Edict of the Curule Ædiles, Book II. Property is held to have been obtained by a creditor through eviction, where the expectation of holding it has been almost lost by the purchaser. Therefore, where eviction took place under the Servian Action, the stipulation in fact becomes operative; but as, where the money is paid by the debtor, the purchaser can hold the slave when the pledge is released, if the vendor is sued, he can avail himself of an exception on the ground of bad faith.

36 Idem libro vicesimo nono ad edictum. Nave aut domu empta singula caementa vel tabulae emptae non intelleguntur ideoque nec evictionis nomine obligatur venditor quasi evicta parte.

36 The Same, On the Edict, Book XXIX. Where a ship or a house has been purchased, the stones of the foundation and the different planks are not understood to have been separately bought; and therefore the vendor will not be liable on the ground of eviction, as he would be in case a portion of the ship or of the house had been recovered through proof of a better title.

37 Ulpianus libro trigesimo secundo ad edictum. Emptori duplam promitti a venditore oportet, nisi aliud convenit: non tamen ut satisdetur, nisi si specialiter id actum proponatur, sed ut repromittatur. 1Quod autem diximus duplam promitti oportere, sic erit accipiendum, ut non ex omni re id accipiamus, sed de his rebus, quae pretiosiores essent, si margarita forte aut ornamenta pretiosa vel vestis serica vel quid aliud non contemptibile veneat. per edictum autem curulium etiam de servo cavere venditor iubetur. 2Si simplam pro dupla per errorem stipulatus sit emptor, re evicta consecuturum eum ex empto Neratius ait, quanto minus stipulatus sit, si modo omnia facit emptor, quae in stipulatione continentur: quod si non fecit, ex empto id tantum consecuturum, ut ei promittatur quod minus in stipulationem superiorem deductum est.

37 Ulpianus, On the Edict, Book XXXII. Double the amount of the price must be promised by the vendor to the purchaser, unless some other arrangement is made, still, it is not necessary for him to give security, unless a special agreement is entered into to that effect, but the vendor will only be liable. 1Moreover, where he stated that double damages must be promised, it should be understood that this does not apply to every kind of transaction, but only to such where the articles sold are of great value; as, for instance, jewels, or precious ornaments, or silken garments, or anything else which is not sold at a low price. By the Curule Edict the vendor is also ordered to furnish security in the case of the sale of a slave. 2Where the buyer through mistake stipulates for simple instead of double damages, and he is deprived of the property by eviction, Neratius says that he can recover the deficiency in the stipulation by means of an action on purchase, provided the buyer does everything required by the stipulation. For if he does not do so, he can, only in an action on purchase, compel the vendor to promise him what was omitted in the stipulation in the first place.

38 Idem libro secundo disputationum. In creditore qui pignus vendidit tractari potest, an re evicta vel ad hoc teneatur ex empto, ut quam habet adversus debitorem actionem, eam praestet: habet autem contrariam pigneraticiam actionem. et magis est ut praestet: cui enim non aequum videbitur vel hoc saltem consequi emptorem, quod sine dispendio creditoris futurum est?

38 The Same, Disputations, Book II. Where a creditor has sold a pledge it may be considered whether, in case of eviction, the vendor can in a suit based on the sale, be compelled to assign the right of action which he has against the debtor. He is, however, entitled to a counter-action on pledge, and the better opinion is that he must make the assignment, for does it not seem more just to him that the purchaser should at least obtain this advantage, which he can do without causing any expense to the creditor?

39 Iulianus libro quinquagesimo septimo digestorum. Minor viginti quinque annis fundum vendidit Titio, eum Titius Seio: minor se in ea venditione circumscriptum dicit et impetrat cognitionem non tantum adversus Titium, sed etiam adversus Seium: Seius postulabat apud praetorem utilem sibi de evictione stipulationem in Titium dari: ego dandam putabam. respondi: iustam rem Seius postulat: nam si ei fundus praetoria cognitione ablatus fuerit, aequum erit per eundem praetorem et evictionem restitui. 1Si servus tuus emerit hominem et eundem vendiderit Titio eiusque nomine duplam promiserit et tu a venditore servi stipulatus fueris: si Titius servum petierit et ideo victus sit, quod servus tuus in tradendo sine voluntate tua proprietatem hominis transferre non potuisset, supererit Publiciana actio et propter hoc duplae stipulatio ei non committetur: quare venditor quoque tuus agentem te ex stipulatu poterit doli mali exceptione summovere. alias autem si servus hominem emerit et duplam stipuletur, deinde eum vendiderit et ab emptore evictus fuerit: domino quidem adversus venditorem in solidum competit actio, emptori vero adversus dominum dumtaxat de peculio. denuntiare vero de evictione emptor servo, non domino debet: ita enim evicto homine utiliter de peculio agere poterit: sin autem servus decesserit, tunc domino denuntiandum est. 2Si a me bessem fundi emeris, a Titio trientem, deinde partem dimidiam fundi a te quis petierit: si quidem ex besse quem a me acceperas semis petitus fuerit, Titius non tenebitur, si vero triens quem Titius tibi tradiderat et sextans ex besse quem a me acceperas petitus fuerit, Titius quidem pro triente, ego pro sextante evictionem tibi praestabimus. 3Pater sciens filium suum quem in potestate habebat ignoranti emptori vendidit: quaesitum est, an evictionis nomine teneatur. respondit: qui liberum hominem sciens vel ignorans tamquam servum vendat, evictionis nomine tenetur: quare etiam pater, si filium suum tamquam servum vendiderit, evictionis nomine obligatur. 4Qui statuliberum tradit, nisi dixerit eum statuliberum esse, evictionis nomine perpetuo obligatur. 5Qui servum venditum tradit et dicit usum fructum in eo Seii esse, cum ad Sempronium pertineat, Sempronio usum fructum petente perinde tenetur, ac si in tradendo dixisset usus fructus nomine adversus Seium non teneri. et si re vera Seii usus fructus fuerit, legatus autem ita, ut, cum ad Seium pertinere desisset, Sempronii esset, Sempronio usum fructum petente tenebitur, Seio agente recte defugiet.

39 Julianus, Digest, Book LVII. A minor under twenty-five years of age sold a tract of land to Titius, and Titius sold it to Seius. The minor alleged that he had been overreached in the sale, and obtained a judicial inquiry, not only against Titius, but against Seius as well. Seius asked the Prætor to grant him an equitable action on the stipulation, against Titius, on account of the eviction. I thought it should be granted, and gave it as my opinion that Seius only demanded what was proper, for if the land should be taken away from him by a decision of the Prætor, it would be but just for restitution to be given him in case of eviction by the same Prætor. 1If your slave should buy another, and then sell him to Titius, after promising double his value in case of eviction, and you also should stipulate with the vendor of the slave, and Titius should claim the slave, and having brought suit is defeated on the ground that your slave could not transfer property in another slave without your consent, Titius would be entitled to the Publician Action, and on this account a stipulation for double damages would not become operative as far as he was concerned. Wherefore, if you bring suit under the stipulation, you can be barred by an exception, on the ground of bad faith, interposed by your vendor. The case would be different, however, if the said slave purchased another, and, after stipulating for double damages, sold him; for if the purchaser was deprived of him by eviction, the owner will be entitled to an action against the vendor to recover the entire sum, but he will only have a right of action against the purchaser to the extent of the peculium. Moreover, the purchaser should notify the slave and not his master, of the eviction, for where he is deprived of the slave through a better title, he can lawfully bring an action on the peculium. If, however, the slave should die, then his master must be notified. 2If you purchase two-thirds of a tract of land from me, and one-third from Titius, and then someone claims half of the land from you, if the half which is claimed from you is included in the two-thirds which you have received from me, Titius will not be liable. Where, however, the claim is for the third which Titius has sold you, and the sixth is included in the two-thirds which you have received from me, Titius will be liable to you for a third, and I for a sixth, in case of eviction. 3A father, aware of his responsibility, sold his son whom he had under his control to a purchaser who was ignorant of the fact, and the question arose whether he was liable in case of eviction. The answer was where anyone knowingly or ignorantly sells a freeman as a slave, he is liable in case of eviction. Hence the father who sold his son as a slave is liable on the ground of eviction. 4Where a party sells and delivers a slave who is to become free under some condition, and does not state that this is the case, he will be liable in case of eviction, without reference to lapse of time. 5Where anyone sells and delivers a slave, and states that the usufruct in him belongs to Seius, while, in fact, it belongs to Sempronius, and Sempronius claims the usufruct; he will be liable just as if in delivering the property he had stated that he was not liable to Seius on account of the usufruct, and if the usufruct actually should belong to Seius, but was bequeathed in such a way that when it ceased to belong to him, it would become the property of Sempronius, and Sempronius should sue for it, he will be liable; but if Seius should bring the action he could legally escape responsibility.

40 Idem libro quinquagesimo octavo digestorum. Si is qui satis a me de evicitone accepit fundum a me herede legaverit, confestim fideiussores liberabuntur, quia, etiamsi evictus fuerit ab eo cui legatus fuerat, nulla adversus fideiussores actio est.

40 The Same, Digest, Book LVIII. Where a party who has taken security from me against eviction bequeaths the land to me as heir, the sureties will be immediately released, because even though he to whom it was bequeathed has to a certain extent been evicted, still, no action against the sureties will lie.

41 Paulus libro secundo ad edictum aedilium curulium. Si ei cui vendidi et duplam promissi, cum ipse eadem stipulatione mihi cavisset, heres exstiterim, evicto homine nulla parte stipulatio committitur: neque enim mihi evinci videtur, cum vendiderim eum, neque ei cui me promissorem praestarem, quoniam parum commode dicar ipse mihi duplam praestare debere. 1Item si domino servi heres exstiterit emptor, quoniam evinci ei non potest nec ipse sibi videtur evincere, non committitur duplae stipulatio. his igitur casibus ex empto agendum erit. 2Si is, qui fundum emerit et satis de evictione acceperit et eundem fundum vendiderit, emptori suo heres exstiterit, vel ex contrario emptor venditori heres exstiterit: an evicto fundo cum fideiussoribus agere possit, quaeritur. existimo autem utroque casu fideiussores teneri, quoniam et cum debitor creditori suo heres exstiterit, ratio quaedam inter heredem et hereditatem ponitur et intellegitur maior hereditas ad debitorem pervenire, quasi soluta pecunia quae debebatur hereditati, et per hoc minus in bonis heredis esse: et ex contrario cum creditor debitori suo exstitit heres, minus in hereditate habere videtur, tamquam ipsa hereditas heredi solverit. sive ergo is qui de evictione satis acceperat emptori cui ipse vendiderat, sive emptor venditori suo heres exstiterit, fideiussores tenebuntur. et si ad eundem venditoris et emptoris hereditas recciderit, agi cum fideiussoribus poterit.

41 Paulus, On the Edict of the Curule Ædiles, Book II. Where I sold a slave and promised double his value to the purchaser in case of eviction, and he had already bound himself to me by the same stipulation; and I afterwards become his heir, and the slave is lost through a superior title, the stipulation in no respect becomes operative. I am not held to have been deprived of him by eviction, since I sold him, nor was he evicted from the party to whom I made the guarantee, since I could, with very little propriety, be said to be liable to pay myself double damages. 1Again, if the purchaser should become the heir of the owner of the slave, as the slave cannot be evicted from him, nor can he be held to evict him from himself, the stipulation for double the amount of his value will not become operative. Therefore, in these cases an action on sale should be brought. 2Where anyone purchases a tract of land, and takes security against eviction, and sells the said land to a purchaser who becomes his heir; or, on the other hand, the purchaser becomes the heir of the vendor, in case the land is lost by eviction, the question arises whether suit can be brought against the sureties. I think that, in either case, the sureties will be liable, since when a debtor becomes the heir of his creditor, a kind of an account is opened between the heir and the estate, and the estate is understood to have become larger for the debtor, since the money which was owing to the estate has been paid and the property of the heir is diminished to that extent. On the other hand, when a creditor becomes the heir of his debtor, the assets of the estate are held to be diminished, just as if the estate itself had paid the creditor. Therefore, whether he who had taken security against eviction himself made the sale to the purchaser, or whether the latter becomes the heir of the vendor, the sureties will be liable; and if the estates of the vendor and the purchaser should pass into the hands of the same person, he can bring an action against the sureties.

42 Paulus libro quinquagesimo tertio ad edictum. Si praegnas ancilla vendita et tradita sit, evicto partu venditor non potest de evictione conveniri, quia partus venditus non est.

42 Paulus, On the Edict, Book LIII. Where a female slave, who is pregnant, is sold and delivered, and her offspring is evicted, the vendor cannot be sued on the ground of eviction because the offspring was sold.

43 Iulianus libro quinquagesimo octavo digestorum. Vaccae emptor, si vitulus qui post emptionem natus est evincatur, agere ex duplae stipulatione non potest, quia nec ipsa nec usus fructus evincitur. nam quod dicimus vitulum fructum esse vaccae, non ius, sed corpus demonstramus, sicuti praediorum frumenta et vinum fructum recte dicimus, cum constet eadem haec non recte usum fructum appellari.

43 Julianus, Digest, Book LVIII. The purchaser of a cow, whose calf born after the sale was evicted, cannot bring an action for double damages under the stipulation, because neither the property itself, nor the usufruct in the same, was evicted; for where we say that a calf is the fruit of the cow, we mean, not the right, but the thing itself, just as we rightly designate grain and wine as the fruit of land, since it is settled that these things are not properly called usufruct.

44 Alfenus libro secundo digestorum a Paulo epitomatorum. Scapham non videri navis esse respondit nec quicquam coniunctum habere, nam scapham ipsam per se parvam naviculam esse: omnia autem, quae coniuncta navi essent (veluti gubernacula malus antemnae velum), quasi membra navis esse.

44 Alfenus, Epitomes of the Digest by Paulus, Book II. It is held that a boat is no part of a ship and has no connection with it, for a boat is itself a little vessel; but everything which is attached to a ship, as, for instance, the rudder, the mast, the yards and the sails, are, as it were, the members of the ship.

45 Idem libro quarto digestorum a Paulo epitomatorum. Qui fundum tradiderat iugerum centum, fines multo amplius emptori demonstraverat. si quid ex his finibus evinceretur, pro bonitate eius emptori praestandum ait, quamvis id quod relinqueretur centum iugera haberet.

45 The Same, Epitomes of the Digest by Paulus, Book IV. Where a person sold and delivered a tract of land containing a hundred jugera, he showed a tract of much greater extent to the purchaser, if the latter should, in consequence, be evicted from a part of the land, the vendor will be obliged to make good the amount in proportion to the quality of the soil; even though the remaining portion may include a hundred jugera.

46 Africanus libro sexto quaestionum. Fundum cuius usus fructus Attii erat, mihi vendidisti nec dixisti usum fructum Attii esse: hunc ego Maevio detracto usu fructu tradidi. Attio capite minuto non ad me, sed ad proprietatem usum fructum redire ait, neque enim potuisse constitui usum fructum eo tempore, quo alienatus esset: sed posse me venditorem te de evictione convenire, quia aequum sit eandem causam meam esse, quae futura esset, si tunc usus fructus alienus non fuisset. 1Si per alienum fundum mihi viam constitueris, evictionis nomine te obligari ait: etenim quo casu, si per proprium constituentis fundum concessa esset via, recte constitueretur, eo casu, si per alienum concederetur, evictionis obligationem contrahit. 2Cum tibi Stichum venderem, dixi eum statuliberum esse sub hac condicione manumissum ‘si navis ex Asia venerit’, is autem ‘si Titius consul factus fuerit’ manumissus erat: quaerebatur, si prius navis ex Asia venerit ac post Titius consul fiat atque ita in libertatem evictus sit, an evictionis nomine teneatur. respondit non teneri eum: etenim dolo malo emptorem facere, cum prius exstiterit ea condicio, quam evictionis nomine exsolverit. 3Item si post biennium liberum fore dixi, qui post annum libertatem acceperit, et post biennium in libertate evincatur, vel decem dare iussum dixerim quinque et is decem datis ad libertatem pervenerit, magis esse, ut his quoque casibus non tenear.

46 Africanus, Questions, Book VI. You sold me a tract of land the usufruct of which belonged to Attius, but you did not mention that he was entitled to the usufruct. I sold the said tract to Mævius, after having reserved the usufruct. Attius was deprived of his civil rights, and it was held that the usufruct reverted to the property, for it could not vest in me at a time when it belonged to someone else. I could, however, bring suit against you, as vendor, on the ground of eviction, because it is just that I should be in the position in which I had a right to be, if the usufruct was then separated from the land. 1If you should grant me a right of way through the premises of another, it is held that you are liable in case of eviction; for wherever a right of way is granted through property belonging to the party who gives it, or whether it is granted through the land of another, he assumes liability for eviction. 2If I should sell you Stichus, and state that he is to be free on a certain condition, and that his manumission was dependent on the arrival of a ship from Asia, while the condition really was that if Titius should become consul he should be manumitted; the question arises if the ship should first come from Asia, and Titius should afterwards become consul, and the ownership of the slave should be lost through his obtaining his freedom; would I be liable on the ground of eviction? The answer was that I would not be liable, because the purchaser was guilty of bad faith, as the condition was fulfilled before he lost the property by eviction. 3Moreover, if I stated that a slave would be free after two years, while, in fact, he ought to become free at the end of a year, and after the lapse of two years he obtains his freedom; or if I should say that he was entitled to his freedom on the payment of five aurei, while, in reality, he had been ordered to pay ten, and, the ten having been paid, he gains his freedom; the better opinion is that in these instances I will not be liable.

47 Idem libro octavo quaestionum. Si duos servos quinis a te emam et eorum alter evincatur, nihil dubii fore, quin recte eo nomine ex empto acturus sim, quamvis alter decem dignus sit, nec referre, separatim singulos an simul utrumque emerim.

47 The Same, Questions, Book VIII. If I purchase two slaves from you, each for five aurei, and one of them is evicted, there is no doubt that I can lawfully proceed against you in an action of purchase, on the ground of eviction, even though the remaining slave is worth ten aurei; nor does it make any difference whether I purchase them separately, or both at once.

48 Neratius libro sexto membranarum. Cum fundus ‘uti optimus maximusque est’ emptus est et alicuius servitutis evictae nomine aliquid emptor a venditore consecutus est, deinde totus fundus evincitur, ob eam evictionem id praestari debet quod ex duplo reliquum est: nam si aliud observabimus, servitutibus aliquibus et mox proprietate evicta amplius duplo emptor quam quanti emit consequeretur.

48 Neratius, Parchments, Book VI. Where a tract of land is bought as being absolutely unincumbered, and the purchaser obtains anything from the vendor on account of some servitude to which the land was subject, and afterwards the entire tract is evicted, the vendor should refund the amount remaining from the double damages, on account of said eviction. For, if we do not observe this rule, the vendor can recover more than double the sum paid for the land, in case of eviction; in the first place, on account of certain servitudes, and afterwards on the ground of ownership.

49 Gaius libro septimo ad edictum provinciale. Si ab emptore usus fructus petatur, proinde is venditori denuntiare debet atque is a quo pars petitur.

49 Gaius, On the Provincial Edict, Book VII. Where an usufruct is demanded from the purchaser, he ought to notify the vendor of it; just as he should do from whom a portion of the property is sought to be recovered.

50 Ulpianus libro vicesimo quinto ad edictum. Si pignora veneant per apparitores praetoris extra ordinem sententias sequentes, nemo umquam dixit dandam in eos actionem re evicta: sed si dolo rem viliori pretio proiecerunt, tunc de dolo actio datur adversus eos domino rei.

50 Ulpianus, On the Edict, Book XXV. Where pledges are sold by officers of the Prætor, in consequence of extraordinary judgments, no one has ever said that an action should be granted against them on the ground of eviction. If, however, they fraudulently permitted the property to be sold for an insignificant sum, then an action will be granted against them in favor of the owner of the property, on the ground of fraud.

51 Idem libro octogesimo ad edictum. Si per imprudentiam iudicis aut errorem emptor rei victus est, negamus auctoris damnum esse debere: aut quid refert, sordibus iudicis an stultitia res perierit? iniuria enim, quae fit emptori, auctorem non debet contingere. 1Si Titius Stichum post mortem suam liberum esse iussum vendiderit, mortuo deinde eo Stichus ad libertatem pervenerit, an stipulatio de evictione interposita teneat? et ait Iulianus committi stipulationem: quamvis enim Titius hoc casu denuntiari pro evictione non potuisset, heredi tamen eius denuntiari potuisset. 2Si quis locum vendiderit et idem venditor ab herede suo voluntate emptoris in eo sepultus fuerit, actio de evictione intercidit: hoc casu enim emptor proprietatem amittet. 3Non mirum autem est, ut evicto homine de evictione teneatur heres, quamvis defunctus non similiter fuerit obstrictus, cum et aliis quibusdam casibus plenior adversus heredem vel heredi competat obligatio, quam competierat defuncto: ut cum servus post mortem emptoris heres institutus est iussuque heredis emptoris adiit hereditatem: nam actione ex empto praestare debet hereditatem, quamvis defuncto in hoc tantum fuit utilis ex empto actio, ut servus traderetur. 4Si plures mihi in solidum pro evictione teneantur, deinde post evictionem cum uno fuero expertus, si agam cum ceteris, exceptione me esse repellendum Labeo ait.

51 The Same, On the Edict, Book LXXX. Where the purchaser of property loses his case through the ignorance or mistake of the judge, we deny that the vendor shall suffer the loss, as what difference does it make whether the property was lost through the baseness or folly of the judge? For the vendor should not suffer the injury done to the purchaser. 1If Titius should sell Stichus, who was to be free after his death, and Stichus obtains his freedom in consequence, will a stipulation made with reference to eviction be valid? Julianus says that the stipulation becomes operative, and even if the purchaser was unable in this instance to notify Titius of the eviction, he can still notify his heir. 2Where anyone sells a tract of land, and the vendor himself is buried there by his heir, with the consent of the purchaser, an action on eviction cannot be brought; for under these circumstances the purchaser will lose the property. 3It is not strange, however, that, where a slave is evicted, the heir should be liable on account of the eviction, although the deceased may not have been called to account in this way; for, in some instances, a greater obligation will arise either against or in favor of the heir than would have affected the deceased; as, for example, where a slave was appointed heir after the death of the purchaser, and entered upon the estate by order of the heir of the latter, for he must surrender the estate in an action on purchase, although a prætorian action could only have been brought against the deceased in order to compel the slave to be delivered. 4Where several parties are liable to me for the entire amount in case of eviction, and then, after eviction has taken place, I proceed against one of them, Labeo says that, if I sue the others, I should be barred by an exception.

52 Idem libro octogesimo primo ad edictum. Sciendum est nihil interesse, ex qua causa duplae stipulatio fuerit interposita, utrum ex causa emptionis an ex alia, ut committi possit.

52 The Same, On the Edict, Book LXXXI. It must be remembered that where a stipulation for double damages has been entered into, it makes no difference whether it can become operative on account of the sale, or because of any other transaction.

53 Paulus libro septuagesimo septimo ad edictum. Si fundo tradito pars evincatur, si singula iugera venierint certo pretio, tunc non pro bonitate, sed quanti singula venierint quae evicta fuerint, praestandum, etiamsi ea quae meliora fuerint evicta sint. 1Si cum possit emptor auctori denuntiare, non denuntiasset idemque victus fuisset, quoniam parum instructus esset, hoc ipso videtur dolo fecisse et ex stipulatu agere non potest.

53 Paulus, On the Edict, Book LXXVII. If any portion of land which has been transferred should be evicted, and each jugerum of the same has been sold for a certain price, then whatever has been evicted should be made good, not with reference to its quality, but in proportion to the amount for which it was sold, even if the parts which have been evicted are better than the remainder. 1If when the purchaser could have notified the vendor, he did not do so, and he should be defeated in court because he did not obtain information which he required, he will be held to have been guilty of bad faith on this account, and he cannot proceed under the stipulation.

54 Gaius libro vicesimo octavo ad edictum provinciale. Qui alienam rem vendidit, post longi temporis praescriptionem vel usucapionem desinit emptori teneri de evictione. 1Si heres statuliberum, qui sub condicione pecuniae dandae liber esse iussus est, vendiderit et maiorem pecuniam in condicione esse dixerit quam dare ei iussus est, ex empto tenetur, si modo talis est condicio, ut ad emptorem transiret, id est si heredi dare iussus est servus: nam si alii dare iussus, quamvis veram pecuniae quantitatem dixerit, tamen, si non admonuerit alii dare iussum, evictionis nomine tenebitur.

54 Gaius, On the Provincial Edict, Book XXVII. Where anyone sells property belonging to another after title by prescription or usucaption has been acquired through lapse of time, he ceases to be liable to the purchaser for eviction. 1If an heir should sell a slave who was ordered to be free under the condition of paying a certain sum of money, and he states that the amount mentioned in the condition is greater than he was directed to pay, he will be liable to an action on purchase, provided the condition is such that it would have passed to the purchaser, that is to say, if the slave was directed to pay the heir; for if he was directed to pay anyone else, even though he may have stated the amount of money correctly, still, if he did not notify the purchaser that he was directed to make payment to another, he will be liable on the ground of eviction.

55 Ulpianus libro secundo ad edictum aedilium curulium. Si ideo contra emptorem iudicatum est, quod defuit, non committitur stipulatio: magis enim propter absentiam victus videtur quam quod malam causam habuit. quid ergo, si ille quidem contra quem iudicatum est ad iudicium non adfuit, alius autem adfuit et causam egit: quid dicemus? ut puta acceptum quidem cum pupillo tutore auctore fuit iudicium, sed absente pupillo tutor causam egit et iudicatum est contra tutorem: quare non dicemus committi stipulationem? etenim actam esse causam palam est. et satis est ab eo cui ius agendi fuit causam esse actam. 1Praesenti autem venditori denuntiandum est: sive autem absit, sive praesens sit et per eum fiat quo minus denuntietur, committetur stipulatio.

55 Ulpianus, On the Edict of the Curule Ædiles, Book II. Where judgment was rendered against a purchaser because he failed to appear, the stipulation does not become operative, and he is held to have been defeated rather on account of his absence, than because he had a bad case. But what if he against whom judgment was rendered was not present at the trial, but another party was present and conducted his case? What shall we decide? For example, where issue has been joined with a ward who was granted authority by his guardian, but the ward being absent, the guardian conducted the suit, and judgment was rendered against him; why should we not in this instance hold that the stipulation was operative, for it is evident that the case was tried? It is sufficient if the case was tried by the party who had the right to do so. 1The vendor should be notified if he is present, but if he is absent, or if, being present, he does something to prevent his being notified, the stipulation will become operative.

56 Paulus libro secundo ad edictum aedilium curulium. Si dictum fuerit vendendo, ut simpla promittatur, vel triplum aut quadruplum promitteretur, ex empto perpetua actione agi poterit. non tamen, ut vulgus opinatur, etiam satisdare debet qui duplam promittit, sed sufficit nuda repromissio, nisi aliud convenerit. 1Si compromisero et contra me data fuerit sententia, nulla mihi actio de evictione danda est adversus venditorem: nulla enim necessitate cogente id feci. 2In stipulatione duplae cum homo venditur partis adiectio necessaria est, quia non potest videri homo evictus, cum pars eius evicta est. 3Si, cum possit usu capere emptor, non cepit, culpa sua hoc fecisse videtur: unde si evictus est servus, non tenetur venditor. 4Si praesente promissore qui de evictione promisit et non ignorante procuratori denuntiatum sit, promissor nihilo minus tenetur. 5Simili modo tenetur et qui curavit, ne sibi denuntiari possit. 6Sed et si nihil venditore faciente emptor cognoscere ubi esset non potuit, nihilo minus committitur stipulatio. 7Pupillo etiam sine tutoris auctoritate posse denuntiari, si tutor non apparet, ex duplae stipulatione benignius receptum esse Trebatius ait.

56 Paulus, On the Edict of the Curule Ædiles, Book II. Where it was stated to the vendor that he must bind himself to pay either simple, triple, or quadruple damages, he can be sued in an action on purchase without reference to lapse of time; for he who pays double damages is not compelled to give security, as is generally supposed, but the mere promise is sufficient, unless something else should be agreed upon. 1If I submit a question to arbitration, and an award is rendered against me, an action on the ground of eviction should not be granted me against the vendor, for I have not acted from necessity. 2Where a slave is sold under a stipulation for double damages, if he should be evicted, an addition with reference to the eviction of a share of said slave will be necessary, for a slave cannot be held to be evicted where only a share in him is involved. 3If the purchaser was able to acquire title by usucaption and does not do so, he is considered to have done this through his own fault, and hence, if the slave is evicted, the vendor will not be liable. 4If notice is given to the agent of the promisor (and the latter is present at the time), and has bound himself with reference to eviction, and is not ignorant of the fact, the promisor will still be liable. 5He also will be liable who took measures to avoid being notified. 6Where, however, the purchaser was not able to ascertain the whereabouts of the vendor, although the latter did nothing to conceal himself, the stipulation will, nevertheless, become operative. 7Trebatius says that it has been established as equitable that, in case of a stipulation for double damages, a ward can be notified without the authority of his guardian, if the latter does not appear.

57 Gaius libro secundo ad edictum aedilium curulium. Habere licere rem videtur emptor et si is, qui emptorem in evictione rei vicerit, ante ablatam vel abductam rem sine successore decesserit, ita ut neque ad fiscum bona pervenire possint neque privatim a creditoribus distrahi: tunc enim nulla competit emptori ex stipulatu actio, quia rem habere ei licet. 1Quod cum ita est, videamus, num et si ab eo qui vicerit donata legatave res fuerit emptori, aeque dicendum sit ex stipulatu actionem non nasci, scilicet si antequam abduceret vel auferret donaverit aut legaverit: alioquin semel commissa stipulatio resolvi non potest.

57 Gaius, On the Edict of the Curule Ædiles, Book II. A purchaser is held to have a right to possession of the property where the party who deprived him of the same by eviction dies without leaving a successor, before the property is taken away or removed, provided it does not belong to the Treasury, or is not liable to be sold by private creditors; for then the purchaser would not be entitled to any action under the stipulation, because he has a right to hold the property. 1Since this is the case, let us see whether it must also be held that an action does not arise on account of the stipulation, where the property was donated or bequeathed to the purchaser by the party who defeated him. This is certainly the case where he donated or bequeathed the property before he removed it; otherwise, when the stipulation has once become operative it cannot be annulled.

58 Iavolenus libro primo ex Plautio. Heres servum non nominatim legatum tradidit et de dolo repromisit: postea servus evictus est. agere cum herede legatarius ex testamento poterit, quamvis heres alienum esse servum ignoraverit.

58 Javolenus, On Plautius, Book I. An heir delivered a slave who was not expressly bequeathed, and gave a guarantee against fraud and the slave was afterwards evicted. The legatee could bring an action on the will against the heir, even though the latter was ignorant that the slave was the property of another.

59 Pomponius libro secundo ex Plautio. Si res quam a Titio emi legata sit a me, non potest legatarius conventus a domino rei venditori meo denuntiare, nisi cessae ei fuerint actiones. vel quodam casu hypothecas habet.

59 Pomponius, On Plautius, Book II. Where property which I purchased from Titius is bequeathed by me, and the legatee is sued by the owner of the same, he cannot notify my vendor of the eviction, unless the rights of action should be assigned to him, or where he has the property secured by hypothecation.

60 Iavolenus libro secundo ex Plautio. Si in venditione dictum non sit, quantum venditorem pro evictione praestare oporteat, nihil venditor praestabit praeter simplam evictionis nomine et ex natura ex empto actionis hoc quod interest.

60 Javolenus, On Plautius, Book II. Where it is not stated at the time of the sale to what extent the vendor should be liable in case of eviction, he will not be liable on this ground for more than simple damages, and for the amount of the interest of the purchaser dependent upon the nature of the action of sale.

61 Marcellus libro octavo digestorum. Si quod a te emi et Titio vendidi, voluntate mea Titio tradideris, de evictione te mihi teneri, sicuti si acceptam rem tradidissem, placet.

61 Marcellus, Digest, Book VIII. Where I purchased something from you, and sold it to Titius, and you deliver it to Titius with my consent, it is settled that you will be liable to me in case of eviction, just as if I had received the property and had delivered it myself.

62 Celsus libro vicesimo septimo digestorum. Si rem quae apud te esset vendidissem tibi: quia pro tradita habetur, evictionis nomine me obligari placet. 1Si ei qui mihi vendidit plures heredes exstiterunt, una de evictione obligatio est omnibusque denuntiari et omnes defendere debent: si de industria non venerint in iudicium, unus tamen ex is liti substitit, propter denuntiationis vigorem et praedictam absentiam omnibus vincit aut vincitur, recteque cum ceteris agam, quod evictionis nomine victi sint. 2Si fundum, in quo usus fructus Titii erat, qui ei relictus est quoad vivet, detracto usu fructu ignoranti mihi vendideris et Titius capite deminutus fuerit et aget Titius ius sibi esse utendi fruendi, competit mihi adversus te ex stipulatione de evictione actio: quippe si verum erat, quod mihi dixisses in venditione, recte negarem Titio ius esse utendi fruendi.

62 Celsus, Digest, Book XXVII. If I should sell you any property which is in your possession, it is settled that I will be liable on the ground of eviction, for the reason that it is considered the same as delivered. 1Where several heirs are left by a party who sold me property, the obligation with reference to eviction applies to all of them and all of them should be notified, and all ought to defend the suit. If they purposely do not appear in court, or one of them appears for all in the case, all of them will be successful, or will be defeated on account of the effect of the notice, and the absence above mentioned, and I can legally proceed against the others, because they were defeated on the ground of eviction. 2If you should sell me a tract of land with the reservation of the usufruct in the same, and the said usufruct belonged to Titius, to whom it had been left during his lifetime, and I am ignorant of the fact, and Titius should forfeit his civil rights, but afterwards having recovered them, should bring suit claiming that he was entitled to the right of the use and enjoyment of the property, an action under the stipulation, on the ground of eviction, will lie in my favor against you; although if what you stated to me at the time of the sale were true, I could very properly deny that Titius was entitled to the use and enjoyment of said property.

63 Modestinus libro quinto responsorum. Herennius Modestinus respondit non obesse ex empto agenti, quod denuntiatio pro evictione interposita non esset, si pacto ei remissa esset denuntiandi necessitas. 1Gaia [ed. maior Seia] <ed. minor Sei> fundum a Lucio Titio emerat et quaestione mota fisci nomine auctorem laudaverat et evictione secuta fundus ablatus et fisco adiudicatus est venditore praesente: quaeritur, cum emptrix non provocaverat, an venditorem poterit convenire. Herennius Modestinus respondit, sive quod alienus fuit cum veniret sive quod tunc obligatus, evictus est, nihil proponi, cur emptrici adversus venditorem actio non competat. 2Herennius Modestinus respondit: si emptor appellavit et bonam causam vitio suo ex praescriptione perdidit, ad auctorem reverti non potest.

63 Modestinus, Digest, Book V. Herennius Modestinus was of the opinion that the purchaser, in bringing an action on sale, would not be barred because notice of the eviction had not been served upon him, if the necessity for notifying him had been released by the agreement. 1Gaia Seia purchased a tract of land from Lucius Titius, and proceedings having been instituted against her in the name of the Treasury, she had recourse to the vendor, and eviction having taken place, she was deprived of the land which was adjudged to the Treasury, the vendor being present at the time. The question arises, as the purchaser did not appeal, whether she can sue the vendor? Herennius Modestinus answered that if the land belonged to another when it was sold, or if it was hypothecated at the time it was evicted, there is no reason why the purchaser should not be entitled to an action against the vendor. 2Herennius Modestinus gave it as his opinion that if the purchaser appealed, and lost a good case through prescription by his own fault, he cannot have recourse to the vendor.

64 Papinianus libro septimo quaestionum. Ex mille iugeribus traditis ducenta flumen abstulit. si postea pro indiviso ducenta evincantur, duplae stipulatio pro parte quinta, non quarta praestabitur: nam quod perit, damnum emptori, non venditori attulit. si totus fundus quem flumen deminuerat evictus sit, iure non deminuetur evictionis obligatio, non magis quam si incuria fundus aut servus traditus deterior factus sit: nam et e contrario non augetur quantitas evictionis, si res melior fuerit effecta. 1Quod si modo terrae integro qui fuerat traditus ducenta iugera per alluvionem accesserunt ac postea pro indiviso pars quinta totius evicta sit, perinde pars quinta praestabitur, ac si sola ducenta de illis mille iugeribus quae tradita sunt fuissent evicta, quia alluvionis periculum non praestat venditor. 2Quaesitum est, si mille iugeribus traditis perissent ducenta, mox alluvio per aliam partem fundi ducenta attulisset ac postea pro indiviso quinta pars evicta esset: pro qua parte auctor teneretur. dixi consequens esse superioribus, ut neque pars quinta mille iugerum neque quarta debeatur evictionis nomine, sed perinde teneatur auctor, ac si de octingentis illis residuis sola centum sexaginta fuissent evicta: nam reliqua quadraginta, quae universo fundo decesserunt, pro rata novae regionis esse intellegi. 3Ceterum cum pro diviso pars aliqua fundi evincitur, tametsi certus numerus iugerum traditus sit, tamen non pro modo, sed pro bonitate regionis praestatur evictio. 4Qui unum iugerum pro indiviso solum habuit, tradidit, secundum omnium sententias non totum dominium transtulit, sed partem dimidiam iugeri, quemadmodum si locum certum aut fundum similiter tradidisset.

64 Papinianus, Questions, Book VII. A river swept away two hundred jugera from a tract of land which contained a thousand when it was transferred. If two hundred jugera of the undivided remainder should afterwards be evicted, the stipulation for double damages will apply to the fifth, and not to the fourth part of said land; for the loss of what was swept away must be borne by the purchaser, and not by the vendor. Where the entire tract which was diminished by the river is evicted, the obligation providing for eviction will not be lessened by law, any more than if a tract of land or a slave should become depreciated in value through neglect; as, on the other hand, the amount for which the vendor is liable, in case of eviction, will not be increased if the property should have been improved. 1Where the amount of land which was transferred remains unimpaired, and two hundred jugera are added to the same by alluvion, and afterwards a fifth part of the entire undivided tract is evicted, the fifth part alone must be made good by the vendor; just as would be the case if two hundred jugera of the thousand which had been delivered were evicted, because the vendor does not guarantee any loss due to alluvial deposit. 2Where two hundred jugera were lost out of a thousand which have been conveyed, and afterwards two hundred more were added by alluvium to another part of the tract, and then an undivided fifth part of the entire tract should be evicted; the question arose for what proportion will the vendor be liable. I stated that, according to what has been previously laid down, the vendor will not be liable either for the fifth part, or the fourth part of the thousand jugera, on the ground of eviction; but will only be liable if merely a hundred and sixty out of the eight hundred jugera should be evicted, for the remaining forty which have been taken away from the entire tract should be understood to belong to the addition to the land, pro rata. 3Again, where a certain part of a tract of land, which is separate, is evicted, although a certain number of jugera were conveyed, still, the amount evicted must be made good, not in proportion to the quantity of the land, but with reference to its quality. 4Where a party who owned a half interest in an undivided jugerum of land, sold and delivered it, he did not, according to the opinion of the authorities, convey the entire ownership, but only the undivided half of the same; just as if he had transferred a certain tract of land or a field in this way.

65 Idem libro octavo quaestionum. Rem hereditariam pignori obligatam heredes vendiderunt et evictionis nomine pro partibus hereditariis spoponderunt: cum alter pignus pro parte sua liberasset, rem creditor evicit: quaerebatur an uterque heredum conveniri possit? idque placebat propter indivisam pignoris causam. nec remedio locus esse videbatur, ut per doli exceptionem actiones ei qui pecuniam creditori dedit praestarentur, quia non duo rei facti proponerentur. sed familiae erciscundae iudicium eo nomine utile est: nam quid interest, unus ex heredibus in totum liberaverit pignus an vero pro sua dumtaxat portione? cum coheredis neglegentia damnosa non debet esse alteri.

65 The Same, Questions, Book VIII. Certain heirs sold property belonging to the estate, which had been pledged, and bound themselves to the extent of their respective shares in case of eviction. One of them released the pledge so far as his share was concerned, and the creditor acquired the property by eviction; the question then arose whether suit could be brought against both heirs. This was held to be the case, on account of the indivisible nature of the pledge, and there did not seem to be any remedy which could be applied, in order that, by interposing an exception on the ground of fraud, the rights of action might be assigned to the heir who paid the money to the creditor; because it could be asserted that both the parties had become liable for the entire indebtedness, but they would be entitled to an action for partition of the estate on this account. For what difference does it make if one of heirs should entirely release the pledge, or whether he should only do so with reference to his share, since the negligence of one heir should not be injurious to his co-heir?

66 Idem libro vicesimo octavo quaestionum. Si, cum venditor admonuisset emptorem, ut Publiciana potius vel ea actione quae de fundo vectigali proposita est experiretur, emptor id facere supersedit, omnimodo nocebit ei dolus suus nec committitur stipulatio. non idem in Serviana quoque actione probari potest: haec enim etsi in rem actio est, nudam tamen possessionem avocat et soluta pecunia venditori dissolvitur: unde fit, ut emptori suo nomine non competat. 1Si is qui rei publicae causa afuit fundum petat, utilis possessori pro evictione competit actio. item si privatus a milite petat, eadem aequitas est emptori restituendae pro evictione actionis. 2Si secundus emptor venditorem eundemque emptorem ad litem hominis dederit procuratorem et non restituto eo damnatio fuerit secuta, quodcumque ex causa iudicati praestiterit procurator ut in rem suam datus, ex stipulatu consequi non poterit: sed quia damnum evictionis ad personam pertinuit emptoris, qui mandati iudicio nihil percepturus est, non inutiliter ad percipiendam litis aestimationem agetur ex vendito. 3Divisione inter coheredes facta si procurator absentis interfuit et dominus ratam habuit, evictis praediis in dominum actio dabitur, quae daretur in eum qui negotium absentis gessit, ut quanti sua interest actor consequatur, scilicet ut melioris aut deterioris agri facti causa finem pretii, quo fuerat tempore divisionis aestimatus, deminuat vel excedat.

66 The Same, Questions, Book XXVIII. If the vendor should notify the purchaser to institute proceedings under the Publician Action, or under the action which has been framed with reference to land subject to tax, and the purchaser has neglected to do this, his bad faith will only injure himself, and the stipulation will not become operative. This rule does not apply to the Servian Action, for although it is a real action, still, it deprives the party of the bare possession, and after the money has been paid to the vendor it will be disposed of; wherefore, the result is that the purchaser cannot bring it in his own name. 1Where anyone who is absent on public business brings suit to recover a tract of land, the possessor can avail himself of an equitable action in case of eviction. This principle also applies where a party who has been deprived of his property by a soldier brings suit, for the same equity demands that the action for restitution, in case of eviction, should be granted to the purchaser. 2If the second purchaser of a slave should appoint the vendor, who was himself the first purchaser, his attorney to conduct the case, and the slave was not given up, and a decision was rendered against him; whatever the said attorney may have paid on the judgment, just as if he was acting in his own behalf, cannot be recovered under the stipulation, but, for the reason that the loss resulting from eviction must be personally borne by the purchaser, who could recover nothing in an action on mandate, he can legally bring an action on sale for the recovery of the amount of damages assessed by the court. 3Where partition has been effected among co-heirs and the agent of one who is absent appears for him, and the principal of the latter ratifies his act; the same action will be granted against the principal, in case the land is evicted, which would have been granted against him who transacted his business while he was absent, and the plaintiff can recover the amount of his interest, that is to say, the amount by which the property was diminished or increased, based upon what it was worth at the time the partition was made, according as the land was rendered more or less valuable.

67 Idem libro decimo responsorum. Emptori post evictionem servi quem dominus abduxit venditor eundem servum post tempus offerendo, quo minus praestet quod emptoris interest, non recte defenditur.

67 The Same, Opinions, Book X. After the eviction of a slave whom the real owner took away from the purchaser, the vendor cannot properly make a defence by afterwards offering the same slave to avoid indemnifying the purchaser for his interest.

68 Idem libro undecimo responsorum. Cum ea condicione pignus distrahitur, ne quid evictione secuta creditor praestet: quamvis pretium emptor non solverit, sed venditori caverit, evictione secuta nullam emptor exceptionem habebit, quo minus pretium solvat. 1Creditor, qui pro pecunia nomen debitoris per delegationem sequi maluit, evictis pignoribus quae prior creditor accepit nullam actionem cum eo qui liberatus est habebit.

68 The Same, Opinions, Book XI. Where a pledge is sold under the condition that the creditor will not be liable for anything in case of eviction, even though the purchaser should not pay the price, but gives security to the vendor; if eviction takes place, the purchaser will not be entitled to an exception to avoid paying the price of the property. 1Where a creditor has preferred to take a claim owned by the debtor by way of substitution for the money due, and the pledges taken by the former creditor are evicted; he will be entitled to no action against the debtor whom he released.

69 Scaevola 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.

69 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.

70 Paulus libro quinto quaestionum. Evicta re ex empto actio non ad pretium dumtaxat recipiendum, sed ad id quod interest competit: ergo et, si minor esse coepit, damnum emptoris erit.

70 Paulus, Questions, Book V. Where property is evicted an action on purchase will not only lie for the recovery of the price, but also for the amount of the interest of the buyer. Hence, if the property has become less valuable, the loss must be sustained by the buyer.

71 Idem libro sexto decimo quaestionum. Pater filiae nomine fundum in dotem dedit: evicto eo an ex empto vel duplae stipulatio committatur, quasi pater damnum patiatur, non immerito dubitatur: non enim sicut mulieris dos est, ita patris esse dici potest nec conferre fratribus cogitur dotem a se profectam manente matrimonio. sed videamus, ne probabilius dicatur committi hoc quoque casu stipulationem: interest enim patris filiam dotatam habere et spem quandoque recipiendae dotis, utique si in potestate sit. quod si emancipata est, vix poterit defendi statim committi stipulationem, cum uno casu ad eum dos regredi possit. numquid ergo tunc demum agere possit, cum mortua in matrimonio filia potuit dotem repetere, si evictus fundus non esset? an et hoc casu interest patris dotatam filiam habere, ut statim convenire promissorem possit? quod magis paterna affectio inducit.

71 The Same, Questions, Book XVI. A father gave a tract of land to his daughter by way of dowry. This having been evicted, a doubt arises (and not without reason) as to whether an action on purchase will lie, or one for double damages based on the stipulation; just as if the father himself had suffered loss. For as the dowry belongs to the woman, it cannot be said to be the property of the father, nor can she be compelled, during the continuation of the marriage, to share with her brothers the dowry which is derived from him. Let us see, however, whether it can not be said with greater probability that under these circumstances the stipulation becomes operative; for it is to the interest of the father that his daughter should be endowed, and if she remains under his control, he may have the expectation of sometime recovering the dowry. But if she has been emancipated, it can hardly be maintained that the stipulation immediately becomes operative, because in one instance the dowry may revert to him. Therefore, can he bring an action against the vendor, since, if his daughter should die during marriage, he will be able to recover the dowry in case the land should not be evicted? Or, in this case, has the father an interest in having his daughter endowed, so that he can at once bring suit against the promisor? This opinion is the better one, as paternal affection is involved in the matter.

72 Callistratus libro secundo quaestionum. Cum plures fundi specialiter nominatim uno instrumento emptionis interposito venierint, non utique alter alterius fundus pars videtur esse, sed multi fundi una emptione continentur. et quemadmodum, si quis complura mancipia uno instrumento emptionis interposito vendiderit, evictionis actio in singula capita mancipiorum spectatur, et sicut aliarum quoque rerum complurium una emptio facta sit, instrumentum quidem emptionis interpositum unum est, evictionem autem tot actiones sunt, quot et species rerum sunt quae emptione comprehensae sunt: ita et in proposito non utique prohibebitur emptor evicto ex his uno fundo venditorem convenire, quod una cautione emptionis complures fundos mercatus comprehenderit.

72 Callistratus, Questions, Book II. Where several tracts of land are sold and expressly and specifically described in one and the same instrument of sale, each of these is not held to be a part of any other, but all the tracts are included in a single purchase. And, just as if anyone should sell several slaves by a single bill of sale, the action for eviction will include each head of said slaves individually; and just as also where a single purchase is made of several other articles, and only one bill of sale is drawn up, there are, however, as many actions for eviction as there are different kinds of property included in the purchase; so, in the case stated, the purchaser certainly will not be prohibited from bringing suit against the vendor if one of said tracts is evicted, because the transaction included several pieces of land conveyed by one instrument of sale.

73 Paulus libro septimo responsorum. Seia fundos Maevianum et Seianum et ceteros doti dedit: eos fundos vir Titius viva Seia sine controversia possedit: post mortem deinde Seiae Sempronia heres Seiae quaestionem pro praedii proprietate facere instituit: quaero, cum Sempronia ipsa sit heres Seiae, an iure controversiam facere possit. Paulus respondit iure quidem proprio, non hereditario Semproniam, quae Seiae de qua quaeritur heres exstitit, controversiam fundorum facere posse, sed evictis praediis eandem Semproniam heredem Seiae conveniri posse: vel exceptione doli mali summoveri posse.

73 Paulus, Opinions, Book VII. Seia gave, by way of dowry, the Mævian and Seian estates, together with others. Her husband, Titius, during the life of Seia, kept possession of said tracts without any dispute arising, but after the death of Seia, Sempronia, who was her heir, raised a question as to the ownership of the land. I ask, as Sempronia herself was the heir of Seia, whether she could legally make such a claim? Paulus answered that she could do so in her own right, but could not, as the heir of Seia, claim the property in question; but if the land was evicted, the heir of Seia could sue Sempronia, or she could be barred by an exception on the ground of bad faith.

74 Hermogenianus libro secundo iuris epitomarum. Si plus vel minus, quam pretii nomine datum est, evictione secuta dari convenerit, placitum custodiendum est. 1Si iussu iudicis rei iudicatae pignus captum per officium distrahatur, post evincatur, ex empto contra eum qui pretio liberatus est, non quanti interest, sed de pretio dumtaxat eiusque usuris habita ratione fructuum dabitur, scilicet si hos ei qui evicit restituere non habebat necesse. 2Mota quaestione interim non ad pretium restituendum, sed ad rem defendendam venditor conveniri potest. 3Qui nomen quale fuit vendidit, dumtaxat ut sit, non ut exigi etiam aliquid possit, et dolum praestare cogitur.

74 Hermogenianus, Epitomes of Law, Book II. If it should be agreed that more or less than the price should be paid, in case of eviction, the parties must abide by this agreement. 1If, by order of court, a pledge taken to secure the execution of a judgment is sold, and it is afterwards evicted, an action on purchase will be granted against the defendant who was released by payment of the price, not for the amount of the interest of the buyer, but for the price alone and the interest on the same to be paid out of the profits, provided the buyer was not required to refund this money to him who obtained the property by eviction. 2Where a claim is formally made, the vendor can be sued, not for the recovery of the purchase-money, but to force him to defend the action. 3Where anyone sells a claim without a guarantee, he can only be compelled to show that it exists, and not that anything can be collected on it, but he will be responsible for fraud.

75 Venuleius libro sexto decimo stipulationum. Quod ad servitutes praediorum attinet, si tacite secutae sunt et vindicentur ab alio, Quintus Mucius et Sabinus existimant venditorem ob evictionem teneri non posse: nec enim evictionis nomine quemquam teneri in eo iure, quod tacite soleat accedere: nisi ut optimus maximusque esset traditus fuerit fundus: tunc enim liberum ab omni servitute praestandum. si vero emptor petat viam vel actum, venditorem teneri non posse, nisi nominatim dixerit accessurum iter vel actum: tunc enim teneri eum, qui ita dixerit. et vera est Quinti Muci sententia, ut qui optimum maximumque fundum tradidit, liberum praestet, non etiam deberi alias servitutes, nisi hoc specialiter ab eo accessum sit.

75 Venuleius, Stipulations, Book XVI. With reference to rural servitudes, where they tacitly follow the land, and are recovered by a third party, Quintus Mucius and Sabinus hold that the vendor cannot be held liable for eviction, for no one is liable on this ground in cases where there is a tacit accession to property; unless the land is conveyed as absolutely and entirely unincumbered, for then it should be warranted to be free from all servitudes. If, however, the purchaser demands a right of way or a driveway, the vendor cannot be held liable, unless he expressly stated that a right of way of some description was accessory to the property, for then he who made the statement will be liable. The opinion of Quintus Mucius, who stated that a party who conveys land as absolutely and entirely unincumbered warrants it to be free from every servitude, is correct; for other servitudes are not due unless it has been expressly stated by the vendor that they are accessories.

76 Idem libro septimo decimo stipulationum. Si alienam rem mihi tradideris et eandem pro derelicto habuero, amitti auctoritatem, id est actionem pro evictione, placet.

76 The Same, Stipulations, Book XVII. If you sell me property belonging to another, and I abandon the same, it is settled that my power to act, that is to say, my right to bring suit on account of eviction, is lost.