Corpus iurisprudentiae Romanae

Repertorium zu den Quellen des römischen Rechts

Digesta Iustiniani Augusti

Recognovit Mommsen (1870) et retractavit Krüger (1928)
Convertit in Anglica lingua Scott (1932)
Dig. XXXVIII5,
Si quid in fraudem patroni factum sit
Liber trigesimus octavus
V.

Si quid in fraudem patroni factum sit

(Where Anything is Done to Defraud the Patron.)

1Ulpianus libro quadragensimo quarto ad edictum. Si quid dolo malo liberti factum esse dicetur, sive testamento facto sive intestato libertus decesserit, quo minus quam pars debita bonorum ad eorum quem perveniat, qui contra tabulas bonorum possessionem accipere possunt: cognoscit praetor et operam dat, ne ea res ei fraudi sit. 1Si alienatio dolo malo facta sit, non quaerimus, utrum mortis causa facta sit an non sit: omni enim modo revocatur. si vero non sit dolo malo facta, sed alias, tunc actori probandum erit mortis causa factam alienationem. si enim proponas mortis causa factam alienationem, non requirimus, utrum dolo malo facta sit an non sit: sufficit enim docere mortis causa factam, nec immerito: mortis causa enim donationes comparantur legatis et sicut in legatis non quaerimus, dolo malo factum sit an non sit, ita nec in mortis causa donationibus. 2Quod autem mortis causa filio donatum est, non revocatur: nam cui liberum fuit legare filio quantumquantum vellet, is donando non videtur fraudasse patronum. 3Omne autem, quodcumque in fraudem patroni gestum est, revocatur. 4Dolum accipere nos oportet eius qui alienavit, non eius cui alienatum est: et ita evenit, ut qui fraudis vel doli conscius non fuit, carere debeat re in fraudem patroni alienata, etsi putavit ingenuum nec credidit libertinum. 5Adversus conpatronum, qui contra tabulas bonorum possessionem omisit, Faviana non competit, si non plus sit in eo quod donatum est quam pars debita patrono. quare si mortis causa ei donatum sit, partem faciet conpatrono, quemadmodum legatarius patronus facit. 6Utrum autem ad ea sola revocanda Faviana pertinet, quae quis libertus de bonis deminuit, an etiam ad ea, quae non adquisiit, videndum est. et ait Iulianus libro vicensimo sexto digestorum, si hereditatem libertus non adierit fraudandi patroni causa vel legatum reppulerit, Favianam cessare: quod mihi videtur verum. quamvis enim legatum retro nostrum sit, nisi repudietur, attamen cum repudiatur, retro nostrum non fuisse palam est. in ceteris quoque liberalitatibus, quas non admisit is libertus cui quis donatum voluit, idem erit probandum Fabianam cessare: sufficit enim patrono, si nihil de suo in necem eius libertus alienavit, non si non adquisiit: proinde et si, cum sub condicione ei legatum esset, id egit, ne condicio existeret, vel, si sub condicione stipulatus fuerit, maluit deficere condicionem, dicendum est Favianam cessare. 7Quid si in lite vinci voluit? si quidem condemnatus est data opera vel in iure confessus, dicendum erit Favianam locum habere: quod si noluit optinere, cum peteret, hic videndum. et puto hunc deminuisse de patrimonio: actionem enim de bonis deminuit, quemadmodum si passus esset actionis diem abire. 8Sed si puta querellam inofficiosi, quam potuit, vel quam aliam, forte iniuriarum vel similem instituere noluit, non potest patronus ob eam rem Faviana experiri. 9At si transegit in fraudem patroni, poterit patronus Faviana uti. 10Sed si libertus filiam dotavit, hoc ipso, quod dotavit, non videtur fraudare patronum, quia pietas patris non est reprehendenda. 11Si pluribus in fraudem libertus donaverit vel pluribus mortis causa, aequaliter patronus adversus omnes in partem sibi debitam sive Faviana sive Calvisiana experietur. 12Si quis in fraudem patronorum rem vendiderit vel locaverit vel permutaverit, quale sit arbitrium iudicis, videamus. et in re quidem distracta deferri condicio debet emptori, utrum malit rem emptam habere iusto pretio an vero a re discedere pretio recepto: neque omnimodo rescindere debemus venditionem, quasi libertus ius vendendi non habuerit, nec fraudemus pretio emptorem, maxime cum de dolo eius non disputetur, sed de dolo liberti. 13Sed si emerit in fraudem patroni libertus, aeque dicendum, si magno emit, in pretio relevandum patronum, condicione non ipsi delata, an velit ab emptione discedere, sed venditori, utrum malit de pretio remittere an potius rem quam vendidit recipere persoluto pretio. et in permutatione et in locatione et conductione similiter idem observabimus. 14Sed si rem quidem bona fide vendiderit et sine ulla gratia libertus, pretium autem acceptum alii donavit, videndum erit, quis Faviana inquietetur, utrum qui rem emit an vero is qui pretium dono accepit? et Pomponius libro octagensimo tertio recte scripsit emptorem non esse inquietandum: fraus enim patrono in pretio facta est: eum igitur qui pretium dono accepit Faviana conveniendum. 15Et alias videamus, si dicat patronus rem quidem iusto pretio venisse, verumtamen hoc interesse sua non esse venumdatam inque hoc esse fraudem, quod venierit possessio, in quam habet patronus affectionem vel opportunitatis vel vicinitatis vel caeli vel quod illic educatus sit vel parentes sepulti, an debeat audiri volens revocare. sed nullo pacto erit audiendus: fraus enim in damno accipitur pecuniario. 16Sed si forte et res vilius distracta sit et pretium alii donatum, uterque Faviano iudicio convenietur et qui vili emit et qui pecuniam accepit muneri. is tamen qui emit si malit rem restituere, non alias restituet, quam si pretium quod numeravit recipiat. quid ergo, si delegatus emptor solvit ei cui donabat libertus, an nihilo minus reciperaret? et magis est, ut reciperare debeat, licet pretium ad alium pervenit, qui solvendo non est: nam et si acceptum pretium libertus prodegisset, diceremus nihilo minus eum qui dedit recipere debere, si velit ab emptione discedere. 17Si mutuam pecuniam libertus in fraudem patroni acceperit, an Faviana locum habeat, videamus. et quod remedium in hoc est? accepit mutuam: si quod accepit donavit, convenit eum patronus cui donavit libertus: sed accepit et prodegit: non debet perdere qui mutuum dedit, nec ei imputari, cur dedit. 18Plane si non accepit et spopondit stipulanti, erit Favianae locus. 19Si fideiussit apud me libertus vel rem suam pro alio pignori dedit in necem patroni, an Faviana locum habeat, videamus, et numquid cum damno meo non debeat patrono subveniri: neque enim donavit aliquid mihi, si pro aliquo intervenit, qui non fuit solvendo: eoque iure utimur. igitur creditor non poterit Faviana conveniri: debitor poterit quidem, sed potest et mandati: plane si deficiat mandati actio, quia donationis causa intervenit, erit Favianae locus. 20Sed et si mandator extitit pro aliquo libertus, idem erit probandum. 21Quamvis autem in partem Faviana competat, attamen in his quae dividi non possunt in solidum competit, ut puta in servitute. 22Si servo meo vel filio familias libertus in fraudem patroni quid dederit, an adversus me iudicium Favianum competat, videamus. et mihi videtur sufficere adversus me patremque arbitrioque iudicis contineri tam id, quod in rem versum est, condemnandi, quam id quod in peculio. 23Sed si iussu patris contractum cum filio est, pater utique tenebitur. 24Si cum servo in fraudem patroni libertus contraxerit isque fuerit manumissus, an Faviana teneatur, quaeritur. et cum dixerimus dolum tantum liberti spectandum, non etiam eius cum quo contraxit, potest manumissus iste Fabiana non teneri. 25Item quaeri potest, manumisso vel mortuo vel alienato servo an intra annum agendum sit. et ait Pomponius agendum. 26Haec actio in personam est, non in rem, et in heredem competit et in ceteros successores, et heredi et ceteris successoribus patroni, et non est hereditaria, id est ex bonis liberti, sed propria patroni. 27Si libertus in fraudem patroni aliquid dederit, deinde, defuncto patrono vivo liberto, filius patroni acceperit bonorum possessionem contra tabulas liberti, an Fabiana uti possit ad revocanda ea quae sunt alienata? et est verum, quod et Pomponius probat libro octagensimo tertio, item Papinianus libro quarto decimo quaestionum, competere ei Favianam: sufficere enim, quod in fraudem patronatus factum sit: magis enim fraudem rei, non personae accipimus. 28In hanc actionem etiam fructus veniunt, qui sunt post litem contestatam percepti.

1Ulpianus, On the Edict, Book XLIV. Where a fraudulent act is said to have been committed by a freedman in order to prevent a part of his estate from coming into the hands of those who have the right to obtain possession contrary to the testamentary provisions, the Prætor takes cognizance of the case, and sees whether he made a will or died intestate, and that the patron is not defrauded. 1Where an alienation is fraudulently made, we do not inquire whether it was made mortis causa, or not, for it is revoked, no matter how it was done. If, however, it was not made with fraudulent intent, but for some other reason, the plaintiff must then prove that the alienation was made mortis causa. For if you suppose an alienation to have been made mortis causa, we do not inquire whether or not this was done with fraudulent intent; for it is sufficient to show that it was made mortis causa. This rule is not unreasonable, for donations mortis causa are compared to legacies, and, as in the case of legacies, we do not ask whether they were made with fraudulent intent or not, so we should not institute such an inquiry with reference to donations mortis causa. 2Again, whatever has been given to a son mortis causa is not revoked, for, as anyone is at liberty to bequeath to his son as much as he chooses, he is not considered to have defrauded his patron by making the donation. 3Everything, however, no matter what it is, that is done in order to defraud a patron, is revoked. 4We must understand the term “fraud” to apply to the person who alienates the property, and not to him to whom it is transferred; hence, it happens that where the recipient is not conscious of the fraud or bad faith which has been committed, he must still be deprived of the property which has been alienated, for the purpose of defrauding the patron, even if he thought the freedman was freeborn, and not one who had been manumitted. 5The Favian Action will not lie against a fellow-patron who was refused prætorian possession of the estate in opposition to the terms of the will, on account of the donation, where the latter is not more valuable than the share to which the patron was legally entitled. Therefore, if the donation was made mortis causa, his fellow-patron will be entitled to his share of the same, just as if one of the patrons had been a legatee. 6Moreover, let us consider whether the Favian Action only has reference to the revocation of such alienations as those by which the freedman diminishes his estate, or does it also have reference to other property which he did not obtain? Julianus, in the Twenty-sixth Book of the Digest, says that the Favian Action will not apply where a freedman, with the intention of defrauding his patron, does not accept an estate, or rejects a legacy which has been bequeathed to him. This appears to me to be true. For, although a legacy is said to belong to us from the time of the death of the testator, unless it should be rer jected, still, when it is rejected, it is clear that it never did belong to us; and the same rule should be adopted with reference to other acts of generosity, where anyone wishes to make a donation to a freedman, and he declines to accept it; as it is sufficient for the patron if his freedman did not alienate any property to his prejudice, and not if he did not acquire the same. Hence, if the legacy was bequeathed to him under a condition, and the freedman should prevent the condition from being fulfilled; or if he should make a stipulation under a condition, and preferred to permit the condition to fail, it must be said that the Favian Law does not apply. 7But what if the freedman should voluntarily lose a lawsuit? If he lost it intentionally, or confessed judgment, it must be said that the Favian Law will be applicable; but if he refused to present his claim in such a way as to collect it, in this instance, the matter deserves consideration. I think that, under such circumstances, the freedman has diminished his estate, for he has taken away a right of action from his property, just as if he had permitted the time for bringing the action to elapse. 8The patron, however, cannot make use of the Favian Action, where, for instance, the freedman refuses to bring suit to declare the will inofficious, or to bring another action, for example, one for injury, or to institute any legal proceeding of this kind. 9But if the freedman has committed some act in order to defraud his patron, the latter can avail himself of the Favian Action. 10If, however, the freedman endowed his daughter, he is not considered to have defrauded his patron of the amount which he gave to her by way of dowry, because paternal affection should not be blamed. 11If a freedman should make donations to several persons for the purpose of defrauding his patron, either during his lifetime, or mortis causa, the patron can bring either the Favian or Calvisian Action against all the parties equally, to recover the share to which he is entitled. 12If anyone should either sell, hire, or exchange property, for the purpose of defrauding his patrons, let us see what the decision of the judge should be. Where the property has been sold, the choice should be given to the buyer either to retain the article which has been purchased, at its proper value, or to surrender it, after having received the price which he paid. We should not absolutely rescind the sale, as if the freedman had no right whatever to sell the property, to avoid causing the purchaser to lose the price which he paid, especially where no fraud is alleged on his part, but only where the fraud of the freedman is to be taken into consideration. 13If, however, a freedman should purchase property for the purpose of defrauding a patron, it must also be said that if he purchased it at too high a price, relief should be granted the patron on this account, and he should not be given the choice of annuling the sale, or not; but the vendor should be permitted either to surrender as much of the price as exceeded the true value of the property, or to recover what he sold, and return the price which he received. We observe the same rule in the exchange, the hiring, and the leasing of property. 14If, however, the freedman sold the property in good faith, and without showing any partiality, but donated the price which he received to another, it must be considered whether he who purchased the property, or he who received the price as a gift, will be liable to the Favian Action. Pomponius, in the Eighty-third Book of the Digest, very properly says that the purchaser should not be molested, for the fraud was committed against the patron with reference to the price, and therefore that he who received the price as a gift would be liable under the Favian Law. 15Let us, however, see if the patron should allege that, although the property was sold at a just price, it was to his interest, nevertheless, that it should not have been sold at all; and that the fraud consists in the fact that possession was alienated of something to which the patron was attached, either on account of its convenience, or its neighborhood, or the purity of the air, or because he was educated there, or his parents were buried therein, if he desires to have the sale revoked, whether he should be heard. He should not be heard in any case of this kind, for the fraud is understood to involve pecuniary loss. 16But if the property was sold for too low a price, and the purchase money should be donated to another, the Favian Action can be brought against both parties, that is to say, against the one who bought the property for less than its true value, and the one who received! the Jprice as a gift. If he who purchased it is willing to surrender it, he will not be compelled to do so, unless he receives the price which he paid. Then what must be done if the purchaser, having been delegated, should pay him to whom the freedman made the gift, would he still be entitled to recover the price? The better opinion is that he would be entitled to recover it, even though it may have come into the hands of a person who is insolvent. For if the freedman squandered the purchase money which he received, we should, nevertheless, hold that he who paid it can recover it, if he is willing to rescind the sale. 17Let us see whether the Favian Action will lie, in case a freedman should borrow a sum of money for the purpose of defrauding his patron, and what the remedy would be in this instance. If the freedman gave away the money which he received, the patron can sue the person to whom the freedman gave it, but if he received it and squandered it, he who lent it should not lose it, nor can he be blamed for having lent it. 18It is evident that there will be ground for the Favian Action, if the freedman did not receive the money, but entered into a stipulation with the person who was to lend it to him. 19Let us see whether the Favian Action will lie where a freedman becomes surety for me, or pledges his property to another in order to defraud his patron, and whether relief should not be granted to the patron at my expense. For the freedman did not give anything to me, if he became security for someone who was not solvent; and this is our practice. Therefore, the creditor cannot be sued by the Favian Action, but the debtor can be, as well as by the action on mandate. It is clear that if the action on mandate should fail for the reason that a donation had been made, there will be ground for the Favian Action. 20The same rule should be adopted where the freedman directs something to be done for the benefit of another. 21Although the Favian Action will only lie with reference to the share of the patron, still, where property cannot be divided, it will lie for the entire amount; as for instance, in the case of a servitude. 22If a freedman should give anything to my slave, or a son under my control, for the purpose of defrauding his patron, let us see whether the Favian Action can be brought against me. And it seems to me that it will be sufficient if the action is brought against me as a master or a father, and that when the judge renders his decision, not only that has been done for the benefit of my property, but also anything relating to the peculium should be taken into consideration. 23If, however, an agreement has been made with a son, by order of his father, the latter will certainly be liable. 24If a freedman should contract with a slave for the purpose of defrauding his patron, and the slave should be manumitted, the question arises whether he will be liable to the Favian Action. As we have already stated, it is only the fraud of the freedman which should be considered, and not that of him with whom he made the agreement; hence the said manumitted slave will not be liable to the Favian Action. 25It may also be asked if the manumitted slave should die, or be alienated, must the action be brought within a year? Pomponius says that it must be. 26This action is a personal and not a real one, and will lie against the heir and other successors, as well as in favor of the heir and other successors of the patron; and it does not form part of the estate, that is to say, of the property of the freedman; but belongs to the patron personally. 27If a freedman should give anything away for the purpose of defrauding his patron, and then the latter should die during the lifetime of the freedman, and the son of the patron should obtain prætorian possession of the estate of the freedman contrary to the provisions of the will, can the Favian Action be employed for the purpose of recovering the property which has been alienated? It is true, as Pomponius says in the Eighty-third Book, and Papinianus also, in the Fourteenth Book of Questions, that the Favian Action will lie in favor of the son, as it is sufficient if the act was committed for the purpose of evading the right of patronage; for we understand this to be done rather as a fraud against the property than against the person. 28The profits obtained after issue has been joined are also included in this action.

2Marcianus libro tertio regularum. In Faviana et Calvisiana actione recte dicetur etiam praeteritos fructus venire, quatenus praetor omnem fraudem libertorum vult rescindere.

2Marcianus, Rules, Book III. It is very properly held that even the profits which have already been obtained are included in the Favian and Calvisian Actions, since it is the intention of the Prætor to annul every fraudulent act of a freedman.

3Ulpianus libro quadragensimo quarto ad edictum. Si patronus heres institutus ex debita parte adierit hereditatem, dum ignorat aliqua libertum in fraudem suam alienasse, videamus, an succurri ignorantiae eius debeat, ne decipiatur liberti fraudibus. et Papinianus libro quarto decimo quaestionum respondit in eadem causa manere ea, quae alienata sunt, idcircoque patronum sibi imputare debere, qui, cum posset bonorum possessionem accipere contra tabulas propter ea quae alienata vel mortis causa donata sunt, non fecit. 1Haec actio in perpetuum datur, quia habet rei persecutionem. 2Patronum ex asse heredem institutum volentem Faviana actione uti praetor admittit, quia erat iniquum excludi eum a Faviana, qui non sponte adiit hereditatem, sed quia bonorum possessionem contra tabulas petere non potuit. 3Si intestatus libertus decesserit, patronus adeundo hereditatem eius revocat per Calvisianam actionem ea, quae alienata sunt dolo malo, quo minus pars ex testamento debita bonorum liberti ad patronum liberosve eius perveniret: idque est, sive petita sit a patrono ab intestato bonorum possessio sive non sit. 4Si plures sint patronae et patroni, singuli virilem tantum revocabunt vel Calvisiana. 5Si libertus intestatus decesserit relicta patrono debita portione aut aliquo amplius, aliquid etiam alienaverit, Papinianus libro quarto decimo quaestionum scribit nihil esse revocandum: nam qui potuit alicui relinquere quid testamento, si debitam portionem patrono relinquat praeterea, donando nihil videtur in fraudem facere.

3Ulpianus, On the Edict, Book XLIV. If a patron who has been appointed heir to the share of an estate to which he is entitled by law should accept the estate without being aware that the freedman had alienated any property with the intention of defrauding him, let us see whether he can be relieved on account of his ignorance, in order to prevent him from being deceived by the fraudulent conduct of his freedman. Papinianus, in the Fourteenth Book of Questions, gives it as his opinion that the property which was alienated remains in the same condition as before; and therefore the patron should blame himself for not having obtained prætorian possession contrary to the provisions of the will with reference to what was either alienated or donated mortis causa, when he could have done so. 1This action is granted perpetually, because its object is the recovery of property. 2The Prætor permits a patron who has been appointed heir to an entire estate to avail himself of the Favian Action, because it would be unjust for him to be excluded from the benefit of the action, when he did not voluntarily enter upon the estate, and did so only because he was unable to demand prætorian possession contrary to the provisions of the will. 3If a freedman should die intestate, the patron, by entering upon the estate can, by means of the Calvisian Action, revoke all alienations fraudulently made, by which, in accordance with the terms of the will, a smaller share of the estate of the freedman will come into the hands of the patron or his children. This occurs whether prætorian possession of the estate is demanded by the patron on the ground of intestacy, or not. 4Where there are several patronesses and patrons, each of them can recover the share to which he or she is legally entitled, or they can bring the Calvisian Action for this purpose. 5When a freedman dies intestate, after leaving to his patron the share to which the latter is legally entitled, or something more, and also alienates some of his property, Papinianus, in the Fourteenth Book of Questions, states that none of his dispositions should be revoked. For he can leave something to anyone by his will, provided he bequeaths to the patron the share to which the latter is entitled, and by making any other donation he is not considered to have committed a fraud.

4Idem libro quadragensimo tertio ad edictum. Quodcumque dolo malo liberti alienatum est, Faviana actione revocatur. 1Etsi plures patroni sint, omnes unam partem habebunt: sed si viriles non petent, portio ceteris adcrescet. quod in patronis dixi, et in liberis patronorum est: sed non simul venient, sed patronis deficientibus.

4The Same, On the Edict, Book XLIII. Everything which was fraudulently alienated by a freedman is revoked by the Favian Action. 1Where there are several patrons, each will have an equal share, but if some of them do not claim their shares, they will accrue to the others. What I have stated with reference to patrons also applies to the children of a patron; but they have no right to share at the same time, but only where the patrons are not in existence.

5Paulus libro quadragensimo secundo ad edictum. Tenetur Fabiana actione tam is qui accepit ipse, quam qui iussit alii dari id quod ipsi donabatur. 1In actione Faviana si res non restituatur, tanti damnabitur reus, quanti actor in litem iuraverit.

5Paulus, On the Edict, Book XLII. He also is liable to the Favian Action who himself receives a donation, rather than one who orders what is to be given to himself to be presented to another. 1In the Favian Action, if the property is not returned, judgment shall be rendered against the defendant for the amount which the plaintiff swears in court that it was worth.

6Iulianus libro vicensimo sexto digestorum. Si libertus, cum fraudare patronum vellet, filio familias contra senatus consultum pecuniam crediderit, non erit inhibenda actio Faviana, quia libertus donasse magis in hunc casum intellegendus est in fraudem patroni quam contra senatus consultum credidisse.

6Julianus, Digest, Book XXVI. Where a freedman, with the intention of defrauding his patron, and in violation of the Decree of the Senate, lends money to a son under paternal control, the Favian Action will not be granted him; because, in this instance, the freedman should be understood to have rather donated the property for the purpose of defrauding his patron than to have left the money in violation of the Decree of the Senate.

7Scaevola libro quinto quaestionum. Ergo si senatus consultum locum non habet, cessat Faviana, cum exigi possit.

7Scævola, Questions, Book V. Therefore, if the Decree of the Senate does not apply, neither will the Favian Action, as the property can be recovered by another proceeding.

8Iulianus libro vicensimo sexto digestorum. Sed si minori quam viginti quinque annis natu filio familias crediderit, causa cognita ei succurri debet.

8Julianus, Digest, Book XXVI. When, however, the freedman lends money to a son under paternal control, who is under twenty-five years of age, after proper cause has been shown relief should be granted to the patron.

9Idem libro sexagensimo quarto digestorum. Vivus libertus donare bene merentibus amicis potest: legare vero nec bene merentibus amicis potest, quo patroni partem minuat.

9The Same, Digest, Book LXIV. A freedman can, during his lifetime, legally make donations to his friends who are entitled to them, but he cannot bequeath legacies to such friends, when, by so doing, he diminishes the share of his estate to which his patron is entitled.

10Africanus libro primo quaestionum. Si id, quod a liberto in fraudem alienatum est, non extet, actio patroni cessat, quemadmodum si pecuniam in fraudem abiecisset aut etiam si is, qui mortis causa a liberto accepisset, eam rem vendidisset et bonae fidei emptor eam usu cepisset.

10Africanus, Questions, Book I. If the property which was fraudulently alienated by the freedman is no longer in existence, the patron cannot bring the action, just as if the freedman had thrown away the money in order to perpetrate a fraud; nor, even if he who obtained a donation mortis causa from the freedman should have sold the property, and a bona fide purchaser has acquired it by usucaption.

11Paulus libro tertio ad legem Aeliam Sentiam. Non videtur patronus fraudari eo quod consentit: sic et quod volente patrono libertus donaverit, non poterit Faviana revocari.

11Paulus, On the Lex Ælia Sentia, Book III. A patron is not considered to be defrauded by an act to which he consents. Hence, where his freedman makes a donation with the consent of his patron, it cannot be recovered by the Favian Action.

12Iavolenus libro tertio epistularum. Libertus cum fraudandi patroni causa fundum Seio tradere vellet, Seius Titio mandavit, ut eum accipiat, ita ut inter Seium et Titium mandatum contrahatur. quaero, post mortem liberti patronus utrum cum Seio dumtaxat qui mandavit actionem habet, an cum Titio qui fundum retinet, an cum quo velit agere possit? respondit: in eum, cui donatio quaesita est, ita tamen si ad illum res pervenerit, actio datur, cum omne negotium, quod eius voluntate gestum sit, in condemnationem eius conferatur. nec potest videri id praestaturus quod alius possidet, cum actione mandati consequi rem possit, ita ut aut ipse patrono restituat aut eum cum quo mandatum contraxit restituere cogat. quid enim dicemus, si is, qui in re interpositus est, nihil dolo fecit? non dubitabimus, quin omnimodo cum eo agi non possit. quid enim non potest videri dolo fecisse, qui fidem suam amico commodavit quam alii quam sibi ex liberti fraude adquisiit.

12Javolenus, Epistles, Book III. A freedman who desired to transfer a tract of land to Seius for the purpose of defrauding his patron took the following course. Seius directed Titius to receive the land in such a way that an obligation of mandate was contracted between Seius and Titius. I ask whether after the death of the freedman, the patron will only be entitled to an action against Seius, who gave the mandate, or against Titius who holds the property, or whether he can proceed against either of them whom he may select. The answer was that the action will be granted against the person who obtained the donation, provided the property came into his hands, since the entire transaction which was carried on with his consent should be embraced in the decision rendered against him. It cannot be held that he should be forced to deliver property of which another has possession, as he can recover it by an action on mandate, so that he can either himself restore it to the patron, or he can compel him with whom he contracted the mandate to do so. But what shall we say if the party who intervened was in no way guilty of fraud? We entertain no doubt that an action cannot be brought against him. For he must not be considered guilty of fraud who did a favor for his friend, by which he made an acquisition for another than himself, through the fraudulent act of the freedman.

13Paulus libro decimo ad legem Iuliam et Papiam. Constitutione divi Pii cavetur de impubere adoptando, ut ex bonis, quae mortis tempore illius qui adoptavit fuerunt, pars quarta ad eum pertineat, qui adoptatus est: sed et bona ei, quae adquisiit patri, restitui iussit: si causa cognita emancipatus fuerit, quartam perdit. si quid itaque in fraudem eius alienatum fuerit, quasi per Calvisianam vel Favianam actionem revocandum est.

13Paulus, On the Lex Julia et Papia, Book X. It is provided by a Constitution of the Divine Pius, which has reference to the adoption of minors under the age of puberty, that, out of the property which the adoptive father possessed at the time of his death, a fourth shall belong to the child who was adopted. The Emperor also ordered any property which he had obtained from his adoptive father to be given him, and if he should be emancipated after proper cause was shown, he will lose his fourth. Therefore, where property has been alienated for the purpose of defrauding the child, it can be recovered by an action resembling the Calvisian or Favian Action.