1Gaius, On the Provincial Edict, Book IV. The Proconsul takes every precaution to prevent any person’s legal position from becoming worse through the act of another; and as he understands that the result of a trial sometimes causes us a great deal more hardship when we have a different adversary than we had at the beginning, he provided against this by stating: “That if anyone, by transferring the property in question should substitute another party in his place as an opponent, and he did this purposely with fraudulent intent, he will be liable to an action in factum to the extent of the interest which the other party had in not having another adversary.” 1Therefore, if a litigant opposes a man from another province, or one who is more powerful, to us as an adversary, he will be held liable;

2Ulpianus, On the Edict, Book XIII. Or anyone who will probably annoy the adversary.

3Gaius, On the Provincial Edict, Book IV. The reason for this is that if I institute proceedings against some one who belongs to another province, I am compelled to do so in his own province, and we can do nothing on an equal footing where the other party is more powerful. 1Moreover, if the man whom we are suing manumits a slave who is claimed in the action, our condition becomes less advantageous, because the Prætors favor freedom. 2Moreover, if you have erected some structure on a tract of land where you may become liable to an interdict Quod vi aut clam; or, in an action granted against a person who diverts rain-water from its natural course, you alienate said piece of property, our condition is understood to be worse; because if I institute proceedings against you, you will be compelled to remove the structure at your own expense, but now I am forced to bring an action against a different party from the one who performed the act, and will be compelled to remove the structure at my own expense; for the reason that he who is in possession of anything of this kind erected by another, is only liable under these proceedings so far as to permit the structure to be removed. 3If I give you notice of a new structure, and you then alienate the land, and the purchaser finishes the work; it is held that you will be liable to this action, for the reason that I cannot bring suit against you based on a notice of a new structure, because you have not built anything; nor can I do so against the party to whom you have conveyed the property, because he has not been notified. 4From all which it is evident that as the Proconsul promises to grant complete restitution, the plaintiff in this action may by order of court obtain damages to the extent of his interest in not having another adversary; as, for instance, if he had incurred some expense, or had suffered some other inconvenience on account of the substitution of another adversary. 5What then would happen, if the person against whom a prætorian action can be brought is ready to defend it, just as if he was still in possession of the property? In this instance it is very properly held that the action based upon this Edict will be refused him.

4Ulpianus, On the Edict, Book XIII. The same Edict also applies where the property has been acquired through usucaption by the party to whom it was transferred, so that no suit could be brought to recover it from him. 1It can also happen that possession is terminated without bad faith, but that this was done for the purpose of altering the conditions of the trial, and there are numerous other cases of this kind. On the other hand, a party may fraudulently relinquish possession, and he may not have acted for the purpose of changing the conditions of the suit; and then he will not be liable under the terms of this Edict, for he does not alienate property, who merely relinquishes possession. The Prætor, however, does not disapprove the act of a party who was so desirous to give up property to prevent his being constantly engaged in litigation on account of it; and this is, in fact, a very modest determination of one who detests lawsuits, and is not to be blamed; but the Prætor only concerns himself with a party who, while desiring to retain the property, transfers his part in the case to another, so that the latter, instead of himself may give his adversary trouble. 2Pedius states in the Ninth Book, that this Edict has not only reference to a transfer of ownership, but also a transfer of possession; otherwise, he says that where the plaintiff brings a suit in rem, and the defendant relinquishes possession, he will not be liable. 3Where, however, anyone through illness, old age, or necessary business, transfers his right of action to another, this is not a case in which he is liable under this Edict, as mention of fraud is made in the Edict; for, otherwise, it would be forbidden to litigate through agents, as ownership is generally transferred to them where proper cause exists for this to be done. 4This Edict also has reference to real servitudes, where their alienation is fraudulently made. 5This action has for its object the amount of the plaintiff’s interest; and therefore, if the property did not belong to him, or if the slave who was alienated should die without the fault of the party who alienated him, the action will not lie, unless there was some additional interest of the plaintiff. 6This action is not a penal one, but it is for the purpose of recovering property by order of court for which reason it is granted to an heir, and also against an heir,

5Paulus, On the Edict, Book XI. Or anyone in similar circumstances;

6Ulpianus, On the Edict, Book XIII. Or after a year it is not granted.

7Gaius, On the Provincial Edict, Book IV. Because it relates to the recovery of property it still appears to be granted on account of an offence.

8Paulus, On the Edict, Book XII. A person is liable under this Edict, even where he produces the property, if he does not, after notification by the judge, place the case in its original condition. 1The Prætor says: “Or an alienation made for the purpose of changing the conditions of the trial”; that is to say, the conditions of a future trial and not these of the present one. 2To “alienate” is also understood to sell the property of another. 3But where a person alienates anything either by appointing an heir, or by making a bequest, the Edict will not apply. 4Where anyone alienates property, and takes it back again, he will not be liable under this Edict. 5Where a purchaser compels his vendor to take back the property sold, he is not considered to have alienated it for the purpose of changing the conditions of the trial.

9Paulus, On the Edict of the Curule Ædiles, Book I. For the reason that when a slave is returned, everything has a retroactive effect, and, therefore, the party who returns the property is not held to have alienated it, in order to change the conditions of the trial; unless he restores the slave for this very purpose, and otherwise would not have restored him.

10Ulpianus, On the Edict, Book XII. For if, being in debt, I deliver the property for which you wished to sue me, this Edict will not apply. 1Where the guardian of a ward, or the curator of an insane person alienates property, a prætorian action will lie, because one cannot presume that either the ward or the insane person can have the intention of committing fraud.

11The Same, Opinions, Book V. When a soldier applied to bring suit in his own name in order to obtain an estate which he alleged had been presented to him; he was told that if the gift had been made for the purpose of changing the conditions of the trial, the action must be brought by the former owner, so that it might appear that he had transferred the property to the soldier, rather than a lawsuit.

12Marcianus, Institutes, Book XIV. Where anyone alienates his share in a piece of property for the purpose of avoiding a suit in partition, he is prohibited by the Lex Licinia from bringing an action in partition himself, for example, in order that some purchaser who is more powerful may obtain it by a lower bid; and he in this way can recover it. He, however, who has disposed of his share, and wishes afterwards to bring suit in partition, shall not be heard; but if the party who purchased it desires to institute proceedings, he is forbidden to do so under that Section of the Edict by which it is provided that no alienation shall be made for the purpose of changing the conditions of a trial.