Florentinus, Institutes, Book I, As we resist violence and injury. For, indeed, it happens under this law what whatever anyone does for the protection of his body is considered to have been done legally; and as Nature has established a certain relationship among us, it follows that it is abominable for one man to lie in ambush for another.

Florentinus, Institutes, Book III. A betrothal is the mention and promise of a marriage to be celebrated hereafter.

Florentinus, Institutes, Book III. From this source the term betrothed, applicable to both sexes, is derived.

Florentinus, Institutes, Book III. Where it was agreed between husband and wife that a certain portion of the dowry, or all of it, should be retained in case of the birth of one or more children; the agreement must be carried into effect, even on account of children who had been born before the dowry was given or increased, for it is sufficient for them to be born during the marriage with reference to which the dowry was bestowed.

Florentinus, Institutes, Book VI. Likewise, precious stones, gems, and other things which we find upon the seashore also at once become ours by natural law.

Florentinus, Institutes, Book VI. The same rule applies to their offspring, born while they are in our hands.

Florentinus, Institutes, Book VI. Unless, having been tamed, they are accustomed to depart and return.

Florentinus, Institutes, Book VI. Likewise, the increase of animals of which we are the owners belongs to us by the same law.

Florentinus, Institutes, Book VI. It is established that the right of alluvium does not exist with reference to land having boundaries. This was also decided by the Divine Pius. Trebatius says that where land taken from conquered enemies is granted under the condition that it shall belong to some city, it will be entitled to the right of alluvium, and has no established boundaries; but that land taken by individuals has prescribed boundaries, so that it may be ascertained what was given, and to whom, as well as what was sold, and what remained public.

Florentinus, Institutes, Book VI. It makes no difference in what way a captive returns, whether he has been sent back, or has escaped from the power of the enemy by force, or strategy; provided that he conies with the intention of not returning thither; for it is not sufficient for anyone merely to return bodily, when his intention is otherwise. Those, however, who are recovered from defeated enemies, are considered to have returned with the right of postliminium.

Florentinus, Institutes, Book VII. Generally speaking, a monument is something which is handed down to posterity by way of a memorial; and in case a body or remains should be placed inside of it, it becomes a sepulchre; but if nothing of this kind is deposited therein, it becomes merely a monument erected as a memorial which is termed by the Greeks a cenotaph, that is to say an empty sepulchre.

Florentinus, Institutes, Book VII. It is lawful for several persons, just as it is for one, to make a deposit; nevertheless, only several persons can make one with a sequestrator, for this is done when property is in dispute, and therefore, in this instance, each one is held to have made the deposit in its entirety. The case is otherwise where several joint-owners deposit property held in common. 1Ad Dig. 16,3,17,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 154, Note 9.Ownership of the article deposited remains with the depositor, as well as possession, unless it is deposited with a sequestrator; for then the latter has possession; for in making the deposit it is the intention that neither shall have possession during the time that it is so held.

Florentinus, Institutes, Book VII. Where work is to be done under a contract, it is at the risk of the contractor until it is accepted. But, indeed, if it has been contracted for to be paid by feet or measure, it will be at the risk of the contractor, until it is measured; and in both instances the risk must be borne by the employer if he was to blame for the work not being accepted or measured. If, however, the work should be destroyed by superior force, before being accepted, it will be at the risk of the employer, unless some other agreement has been made. The contractor is not obliged to be responsible to the employer for anything more than he could have accomplished by his care and labor.

Florentinus, Institutes, Book VIII. Where a man accepts interest from a debtor in advance, it is held to be a tacit agreement that he will not bring suit for the principal during the time for which the interest is paid. 1Where a contract is drawn up in such a way that it is personal on one side, and relates to property on the other; as, for instance, that I will not bring suit, or that you shall not be sued; my heir will then have a right of action against all of you, and all of us will have a right of action against your heir.

Florentinus, Institutes, Book VIII. Where something is due on account of both principal and interest from a party who owes money secured by pledges, whatever is received from the sale of the pledges must be credited upon the interest, which it is established is due at the time, and then, if there is anything left it must be credited on the principal. A debtor should not be heard if, when he is well aware that he is hardly solvent, he desires to make a choice as to the claim on which he prefers the pledge to be released. 1A pledge only transfers possession to the creditor the ownership of the property remaining in the debtor; the latter, however, can make use of his property by sufferance and also under a lease.

Florentinus, Institutes, Book VIII. Whatever is stated, while sales are being made, in praise of the property, will not bind the vendor, if the truth be clearly apparent; as, for example, where the vendor says that a slave is handsome, or a house well constructed. If, however, he should allege that the slave is well educated, or a skilled artisan, he must make his statements good, for he sold the property for a higher price by reason of them. 1Ad Dig. 18,1,43,1ROHGE, Bd. 10 (1874), S. 355: Der Verkäufer ist nicht bloß zur Vertretung der heimlichen, sondern schlechthin aller nicht angezeigten, nicht unerheblichen Mängel verbunden, sofern er nicht beweist, daß der Käufer sie gekannt hat oder kennen mußte.There are certain promises which do not bind the vendor if the property is in such a condition that the purchaser cannot be ignorant of it; as, for instance, where anyone buys a slave whose eyes have been torn out, and the vendor stipulates with regard to his soundness, for he is held to have stipulated for every other part of his body, with the exception of that in which he deceives himself. 2Ad Dig. 18,1,43,2ROHGE, Bd. 4 (1872), S. 319: Civilrechtlicher Dolus verübt durch Verschweigen von Thatsachen.The vendor should warrant that he is not guilty of fraudulent intent; and this not only applies where he speaks ambiguously for the purpose of deceit, but also where he treacherously and artfully dissimulates.

Florentinus, Institutes, Book VIII. Where an heir enters upon an estate, he is understood to have succeeded the deceased from the date of his death.

Florentinus, Institutes, Book VIII. Anything which you may add that is foreign to the stipulation and which has no reference to the present contract will be considered as superfluous, but will not vitiate the obligation; for instance, if you say, “I sing of arms and the man, I promise,” the stipulation will be valid. 1When, however, any change is made in the designation of the property, or of the person concerned in the transaction, it is held that this will present no obstacle. For if he stipulates for denarii, you will be bound, if you promise aurei to the same amount. And where a slave stipulates for Lucius, his master, and you promise to pay Titius, who is the same person, you will be liable.

Florentinus, Institutes, Book VIII. One of two joint-promisors can be bound from a specified day, or conditionally, for neither the day nor the condition will present any obstacle to prevent him who is absolutely liable from being sued.

Florentinus, Institutes, Book VIII. If my slave stipulates that property shall be given to me, to himself, or to a fellow-slave, or does not designate any particular person, he will acquire for my benefit.

Florentinus, Institutes, Book VIII. A surety can be accepted even before the estate has been entered upon, if the principal debtor is dead, because the estate performs the function of a person in the same way as a municipality, a decurion, and a partnership.

Ad Dig. 46,2,16Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 355, Noten 4, 5.Florentinus, Institutes, Book VIII. A slave cannot make a novation without the consent of his master, even where the obligation involves his peculium, but he rather creates a new obligation than renews the former one.

Florentinus, Institutes, Book VIII. When this is done, the creditor should be at liberty not to receive the money, or the debtor not to pay it, if either of them desires it to be applied to the settlement of some other claim.

Florentinus, Institutes, Book VIII. A release and a discharge from liability can be granted either in one, or in several contracts, whether they are certain or uncertain; or with reference to some, reserving the others; or for all of them, for any reason whatsoever. 1The following is the formula of a stipulation and a release, drawn up by Gallus Aquilius: “All that you owe, or shall owe me for any reason whatsoever, either now or after a certain date, for which I can now, or shall be able to bring suit against you, on a claim, or a right to collect; or any property of mine which you have, hold, or possess, and all the value of any of the things aforesaid, Aulus Agerius has stipulated for, and Numerius Nigidius has promised to pay. And Numerius Nigidius has asked Aulus Agerius if he acknowledges the receipt of what he promised him, and Aulus Agerius has granted a release for the same to Numerius Nigidius.”

Florentinus, Institutes, Book VIII. By the term “real property” all buildings and all land are understood; in speaking of buildings in a city, however, we usually call them sedes, and in the country villas. A site without a building in a city is called area, and in the country ager, and the latter, when a house is erected upon it, is styled fundus.

Florentinus, Institutes, Book IX. Liberty is the natural power of doing whatever anyone wishes to do unless he is prevented in some way, by force or by law. 1Slavery is an institution of the Law of Nations by means of which anyone may subject one man to the control of another, contrary to nature. 2Slaves are so called for the reason that military commanders were accustomed to sell their captives, and in this manner to preserve them, instead of putting them to death. 3They are styled mancipia, because they are taken by the hands of their enemies.

Ad Dig. 28,1,24Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 544, Note 4.Florentinus, Institutes, Book X. Anyone can make several copies of the same will, and indeed this is sometimes necessary; for example, where the testator is about to take a sea voyage, and desires to leave the will behind him, and take a copy with him.

Florentinus, Institutes, Book X. Sons can also be disinherited in the following terms: “Let my son be disinherited”; “My son shall be disinherited.”

Florentinus, Institutes, Book X. If I should direct a slave belonging to another to be free and my heir, and the slave should afterwards become mine, neither of these provisions will be valid, for the reason that freedom cannot legally be granted to the slave of another. 1So far as foreign heirs are concerned, the rule must be observed that, where all have testamentary capacity, whether they themselves are appointed heirs, or others are appointed who are under their control, the appointment has reference to two different times, that of the execution of the will, in order that the appointment may be made, and that of the death of the testator, in order that it may take effect. Moreover, the execution of the instrument will have reference to the acceptance of the estate, whether the heir was appointed absolutely or under some condition; for, with regard to the right of the heir, special attention must be paid to the time when he acquires the estate. A change in the right of the heir, if it took place in the intermediate time, that is, during the interval between the execution of the will and the death of the testator or the fulfillment of the condition of the appointment, will not prejudice him, because, as I have stated, we must take into consideration these three different dates.

Florentinus, Institutes, Book X. An heir can be substituted for each of the children of a testator, or for one of them who may survive; for each one, where he does not wish that any of them should die intestate, for the survivor, if he desires the right of legitimate succession to remain unimpaired.

Florentinus, Institutes, Book X. Where several appointments of heirs to the same share of an estate have been made under different conditions, the condition which is first performed will confer priority on the appointment.

Florentinus, Institutes, Book X. The Divine Trajanus stated in a Rescript addressed to Statilius Severus that: “The privilege accorded to persons serving in the army which imparts validity to their wills, no matter how they have been executed, must be understood as follows, namely, in the first place, it must be established that the will was executed, which can be done without committing it to writing, which also applies to others who are not soldiers. Therefore, where a soldier, with reference to whose estate application has been made to you, has called together persons to witness his will, and declared in their presence whom he desired to be his heir, and to what slave he wished to grant freedom, it may be held that he, in this way, made a will without reducing it to writing, and his wishes must be carried into effect. If, however (as frequently happens), he should say to someone: “I constitute you my heir, or I leave you my property”; this must not be regarded as a will. Nor does it make any more difference to others than those to whom this privilege is granted, that such a disposition of property should not be allowed; for otherwise, it would not be difficult for witnesses to be found after the death of a soldier, who would assert that they had heard the latter say that he left his property to those whom they desired to benefit, and in this way the wills of soldiers would be overthrown.”

Florentines, Institutes, Book X. If a freedman has incurred the penalty of death, the claim of his patron to that share of his estate to which he is entitled will not be extinguished, if he who had been sentenced to be executed should die a natural death; but it has been decided that the remainder of the estate which, under the Civil Law, would not belong to the person who emancipated him, may be demanded by the Treasury. 1The same rule should be observed with reference to the estates of those who have killed themselves, or have taken to flight, through fear of being accused, as has been established with respect to the property of those who have been condemned to death.

Florentinus, Institutes, Book X. Where anyone is ordered to do something in the presence of Titius, he is not understood to have done it in his presence, unless Titius understands that this is the case; therefore, if he should be insane, or a child, or asleep, he is not considered to have performed the act in his presence. He must know that it is done, but it is not necessary that he should be willing, for what is ordered will be legally done, even against his consent.

Florentinus, Institutes, Book XI. Where a bequest of the use of some property is left to one man, and the yield of it to another, the usufructuary will obtain whatever remains after the demands of the party entitled to the use are satisfied, but he himself will have a certain amount of use for the purpose of enjoyment. 1It makes a difference whether the usufruct of property or the value of the same is bequeathed to you; for if the usufruct of the property is left to you, any article which was bequeathed to you in addition, must be deducted from it, and you will be entitled to an usufruct in whatever remains; but where the usufruct of the value in money is left you, this also will be estimated, because it is an additional bequest, for by bequeathing the same property several times the testator does not increase the legacy; but where one specific article has been bequeathed, we can increase the legacy by bequeathing the estimated value of it also.

Florentinus, Institutes, Book XI. The peculium also consists of what anyone has saved by his own economy, or what he has, by the performance of any service, merited as a gift from someone, where the donor intended that the slave should have this as his own property.

Florentinus, Institutes, Book XI. A legacy is a deduction from an estate whereby a testator desires that something should be given to a person which otherwise would have entirely belonged to the heir. 1Ad Dig. 30,116,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 627, Note 8.An heir cannot be charged with a legacy for his own benefit, but you, as his co-heir, can be charged with one for his benefit. Therefore, if a tract of land is devised to a person who is appointed heir to half of the estate, and there are also two heirs who are strangers, the sixth part of the said tract of land will belong to the heir to whom the land was left, because he cannot claim half of it from himself; and with respect to the other half held by his co-heir he cannot claim more than the third part conjointly with the two strangers. The strangers, however, will have a right to claim half of the land from the heir to whom it has been devised, and each of them a third from the other heir. 2Where a slave belonging to another is appointed an heir, he cannot be charged with a legacy of himself, either entirely or partially. 3A legacy can lawfully be bequeathed to a slave who forms part of an estate, even though it has not been entered upon, because the estate represents the person of the deceased who left it. 4Where real property is devised, it should be delivered in the same condition in which it was left. Therefore, whether it owes a servitude to land belonging to the heir, or the latter owes it a servitude, and even though these servitudes may have been extinguished through confusion of ownership, the former right must be restored, and if the legatee does not permit the servitude to be imposed, and claims the legacy, he can be opposed by an exception on the ground of bad faith. Where, however, the servitude is not restored to the land entitled to it, an action under the will will remain in favor of the legatee.

Florentinus, Institutes, Book XI. That is to say, movable property, but not animals, is classed under this head.

Florentinus, Institutes, Book XI. Where material of another description is inserted in gold or silver, and the legacy consists of manufactured gold or silver, whatever is inserted in them will be due to the legatee. 1In order to determine which of the two materials is accessory, the intention and custom of the testator, as well as the use which he made of the article in question, must be ascertained.

Florentinus, Institutes, Book XI. Legacies which are void when granted, are not rendered valid by being suppressed; as, for instance, after having appointed the master of a slave his heir, the testator conditionally deprives the said slave of an absolute bequest which he had made to him of the same. For where an absolute bequest is taken away by imposing a condition, it is held to have been bequeathed under the contrary condition, and therefore is confirmed. This, however, does not apply where the legacy which was suppressed was not valid in the first place. 1The same reasons for which a legacy becomes void when bequeathed, cause its suppression also to become of no force or effect; as, for example, if you deprive a legatee of a part of his right of way, or direct a slave to be only partly free.

Florentine, Institutes, Book XI. Where a bequest is made to anyone specifically, as, for example, to Lucius Titius; it would make no difference whether he designated him in this way, or by mentioning his physical characteristics, his trade, employment, relationship, or affinity; for a designation of this kind generally takes the place of the name, nor is it of any consequence whether it be false or true, provided it is positively known whom the testator meant. 1There is this difference between designation and a condition: a designation generally refers to something which has already been done, a condition to something which is to take place.

Florentinus, Institutes, Book XI. Where an heir, who was charged by a trust to transfer the estate to someone after the receipt of a certain sum of money, refuses to carry out the will of the testator, and afterwards desires to avail himself of the benefit of the Falcidian Law, even though the money may not have been paid to him who, on receipt of it, was asked to transfer the estate; still, he will be compelled to execute the trust, since what the testator wished to be given him will take the place of the Falcidian portion.