Ad Dig. 9,2,53ROHGE, Bd. 20 (1877), Nr. 96, S. 382: Schaden durch Ausbringen eines Ankers im Hafen ohne Bezeichnung.Neratius, Parchments, Book I. You drove oxen belonging to another into a narrow place which caused them to be thrown to the ground and injured. An action resembling that brought under the Lex Aquilia will be granted against you.

Neratius, Parchments, Book I. It is our practice that whatever is placed on urban estates is considered to be pledged, as it were, by tacit agreement; in rustic estates, however, the contrary rule is observed. 1Ad Dig. 20,2,4,1ROHGE, Bd. 6 (1872), S. 281: Pfandrecht des Vermiethers an den eingebrachten zum Verkaufe bestimmten Waaren des Miethers. Zeitweise und dauernde Bestimmung der Verwendung.Can it be doubted whether stables which are not joined to other buildings should be considered as being included in these estates? And, indeed, there is no question with respect to urban estates, since they are separated from other buildings. However, with reference to a tacit pledge of this kind, they do not differ greatly from urban estates.

Neratius, Parchments, Book I. When the Senate permits the appointment of curators for the sale of property, it does not authorize the creditors to dispose of the same, even though they prefer to sell it after this privilege has been granted; as, while the latter have the right to choose whichever one they may desire, still, after they have selected one curator, they must not apply to another. It is much more just for this rule to be observed where the curator, after having been appointed for the sale of property, dies before the transaction has been concluded; for, in this instance, another curator must be appointed for the settlement of the entire matter, and the heir of the first curator cannot be entrusted with it, since it may happen that the heir may not be fitted for the business, either on account of sex, or the infirmity of age, or the higher or lower rank, of the former curator; and, moreover, there may be several heirs to the first curator, and it may not be expedient for all of them to transact the business, or some reason may be alleged why one of them should be charged with this duty rather than the others.

Neratius, Parchments, Book I. A father substituted his slave as heir to his minor son, and at the same time granted the latter his freedom, and the minor sold the said slave to Titius. Titius, who had already made one will, in a second ordered the slave to be free and his heir. The first will of Titius was broken because the said slave could be his heir; and as the first will was broken, it is sufficient that the one subsequently executed provided that the heir appointed by it should, in a certain contingency, succeed to the testator. With reference to the effect of this appointment, the result will be that as long as the heir can succeed to the minor by reason of this substitution, he can not obtain his freedom and the estate under the will of Titius. If the heir should obtain control of himself, he would then obtain his freedom, and the estate by the terms of the will of Titius, just as if he had not been substituted for the minor; and if he should become the heir of the minor, there is the best reason to conclude that he could also be the heir of Titius, if he was willing.

Neratius, Parchments, Book I. Titius, an heir, having been charged with the legacy of a slave to Seius, the said slave committed a theft against Titius, before the estate was entered upon. If, after it had been entered upon, Seius should wish to have the legacy, Titius could bring an action for theft against him, on account of the act of the slave, because when the latter committed the crime, he did not belong to Titius; and even though anyone should hold that if the slave had begun to belong to him against whom he committed the theft, the right of action for theft would be extinguished, so that even if he was alienated, suit could not be brought on this ground. The slave did not become the property of Titius until after the estate had been entered upon, because legacies pass directly from the person who leaves them to him to whom they are bequeathed.

Neratius, Parchments, Book I. The term of exemption which is conceded to those who are absent on business for the State should not be calculated from the day on which the person ceased to be absent, but some time should be allowed him to rest after his journey; and he is still understood to be absent in the public service if he transacts any business either while going or returning. But if anyone delays longer than is proper while on his way, or in any place, in this instance, the time of exemption should be understood to begin from the date when he could have conveniently concluded his journey.

Neratius, Parchments, Book II. If one man, as the agent for another, stipulates that he will merely produce him whom he agreed to produce without mentioning a penalty, and he should not appear, a stipulation of this kind can hardly have any weight; because the agent, so far as it relates to himself, has no interest in his appearance. But since, in making the stipulation, he is transacting the business of another, it may be stated that the benefit which must be considered in the matter does not accrue to the agent, but to the party whose business he was transacting; so that if the party does not appear, there should be due to the agent an amount equal to the interest of the principal in the suit in accordance with the terms of the stipulation. The same rule can be said to apply even more strongly, where the agent had stipulated in the following terms: “Whatever compensation is proper”; as we understand these words to have reference not to the benefit of the agent himself, but to that of the principal in the action.

Neratius, Parchments, Book II. With reference to what Servius states in his book on Dowries; that is, if a marriage has taken place between persons neither of whom has yet reached the proper age, whatever in the meantime has been given by way of dowry can be recovered; we must understand by this that if a divorce is obtained before either person has reached the lawful age, the money may be recovered, but so long as they remain in the state of matrimony the property cannot be recovered any more than where it is given as dowry by a betrothed woman to her betrothed husband, so long as the connection exists between them; for when anything is given on this account before the marriage has been consummated, then, (since it is given in such a way that it may become a dowry) it cannot be recovered as long as it is possible that this may happen.

Neratius, Parchments, Book II. In case a deposit is made on account of a tumult, a fire, the destruction of a house, or a shipwreck, the action brought against the heir on account of the fraud of the deceased is for his share of the estate, and for simple damages, and it also must be brought within a year; but where it is brought against the heir himself it is granted for the entire amount, for double damages, and without reference to time.

Neratius, Parchments, Book II. Where it is stated that necessary expenses incurred with reference to dotal property diminish the dowry, this must be understood to mean where anything is expended on such property over and above what is necessary for its preservation, that is to say, for its benefit. For a man should preserve dotal property at his own expense; otherwise, provisions furnished to dotal slaves, and any moderate repairs of buildings, or even the cultivation of the soil, would diminish the dowry; for all these things are included under the head of necessary expenses. The property itself, however, is understood to yield a certain income, so that you appear not to have expended money upon it, but, after having deducted the expenses, you have received a smaller return therefrom. It is not easy, generally speaking, to decide in accordance with this distinction what expenses should be deducted from the dowry, but they can be estimated in detail according to their nature and amount.

Neratius, Parchments, Book II. Where anyone becomes the heir of his father, and is also appointed the substitute of a child under the age of puberty, he cannot reject the estate of the latter. This must be understood to apply, even if the heir should die during the lifetime of the minor, and then the minor himself should die; for whoever becomes the heir will necessarily also be the heir of the minor. For if the second heir binds himself against his will, it must be held that the estate of the minor is united with that of the father, and, by the right of accrual, it is acquired by whoever becomes the heir of the father.

Neratius, Parchments, Book III. There is no doubt that the parties can withdraw in all contracts relating to purchase, sale, leasing, hiring, and other similar obligations, where everything remains the same by the common consent of those who have bound themselves. The opinion of Aristo goes still farther, for he thinks that if I have performed all the acts which it was necessary for me to perform as vendor, with regard to the property sold to you; and, while you still owe me the purchase money, it is agreed between us that you shall restore to me everything relating to the property sold, which was delivered to you by me, and that you shall not pay the purchase money; and, in accordance with this, you do return it to me, you will cease to owe me the money; because good faith which governs matters of this kind admits of this interpretation and agreement. It does not matter whether the agreement is made to abandon the contract, all things as to which we bound ourselves remaining the same; or whether you return everything which I delivered to you, and we then agree that you shall not give me anything on account of the contract. It is certain that the following cannot be accomplished by a contract which has reference to annulling what has been done; that is, that you may be compelled to return to me what I have already given you; since, in this way, the business would be transacted not so much by annulling our former contract, as by creating new obligations between ourselves.

Neratius, Parchments, Book III. The Publician Action was not invented for the purpose of depriving the real owner of his property (and this is proved in the first place on equitable principles; and in the second place by the use of the exception: “If the property in dispute does not belong to the possessor”); but, for the reason that where a man purchases anything in good faith and has obtained possession of it, he, rather than his adversary, should be entitled to hold it.

Neratius, Parchments, Book III. An usufructuary is not permitted to put fresh plaster on walls which are rough; because, even though by improving the house he would render the condition of the owner better, he cannot do this through any right of his own; for it is one thing for him to take care of what he has received, and another to do something new.

Neratius, Parchments, Book III. You and I were both joint heirs to the estate of Lucius Titius, and I sold my share of a tract of land belonging to the estate, and then an action for the partition of the estate was brought between us. In this instance, the share which was mine will not be included in the case, since when it was sold it was no longer a part of the estate; nor will your share be taken into consideration, because even if it remains in its former legal condition and belongs to the estate; still, by the sale of my share the ownership of it ceased to be common. Whether one heir does not sell his share or several do not do so, is of no importance; provided a certain portion which has been alienated by one of the heirs and has ceased to form part of the estate.

Neratius, Parchments, Book III. If the property which I am obliged to deliver in accordance with the contract of sale is taken from me by force, although I am required to be responsible for its safe-keeping, it is still more proper that I should only be required to transfer to the purchaser my rights of action for the recovery of said property; because its safe custody is of very little advantage where violence is employed. I should assign to you not only the rights of action which relate to profit, but also such as have reference to loss, so that you may obtain all the gain as well as be responsible for the expense. 1I should assign to you not only what I myself have acquired by means of the said property, but also what the purchaser would have acquired if the slave had been delivered to him at once. 2Ad Dig. 19,1,31,2Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 199, Note 13.Two of us purchased the same property from a party who was not the owner, the purchase and sale were concluded without bad faith. and the property was delivered. Whether we both made the purchase from the same person, or from two different ones, he must be protected who first acquired his right; that is to say, the one to whom delivery was first made. Where one of two parties makes a purchase from the owner of the property, he must by all means be protected.

Neratius, Parchments, Book III. A man wished to make a present to his wife, and a debtor of hers, who was not solvent, promised her a dowry. The husband will only be responsible to the extent that the debtor was solvent, and if the latter should acquire anything which might enable him to meet his obligations, the responsibility will increase in proportion to the amount which he acquired. And it will continue to exist, even if he afterwards became more indigent because when the dowry was promised, the donation consisted only of what could not be collected from the debtor, and when the latter became solvent, the obligation still persisted, on account of the donation; since the matter is in the same condition as it would be if the debtor had been wealthy at the time when the dowry was promised.

Neratius, Parchments, Book III. A slave is ordered to be free if he pays ten aurei to the heir. He has the amount, but he owes an equal sum to his master. He will not be free by payment of these ten aurei, because where a slave is permitted to pay money out of his peculium for the purpose of complying with a condition, we must understand this to mean that he must not pay what does not belong to his peculium. I am perfectly aware that this money can be said to form part of his peculium; although if the slave had nothing else, he would have no peculium. But it cannot be doubted that the intention of those who established the rule was that the slave should have the power of making payment out of his peculium, just as out of his patrimony, because this could be conceded as being done without any injury to his master. If, however, anyone should go farther, the case would not differ much from one where a person might hold that the slave complied with the condition by the payment of money which he had stolen from his master.

Neratius, Parchments, Book III. While we are examining the interdicts which have reference to water used during the summer, we think that we should first determine what summer water is, concerning which an interdict is usually granted relating to the preceding season; that is to say, whether summer water should be decided to be such as one only has a right to use during the summer, whether the intention of him who has the right to conduct it during that season ought to be taken into account; whether this designation depends upon the nature of the water itself, which can only be conducted during the summer; or whether the advantage to the places to which it is conducted should be considered. Hence it was held that the water was properly so called on account of two things; namely, its nature, and the benefit of the land upon which it is conveyed; so that if its nature is such that it can only be conducted during the summer, even though it is also desired to do this during the winter; or if its nature permits it to be conducted during any season of the year, and the benefit to the places where it is taken only requires its use during the summer by the persons entitled to it, it is very properly called summer water.

Ad Dig. 46,7,16Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 479, Note 10.Neratius, Parchments, Book III. When I desire to institute proceedings against one of several sureties, under a stipulation to pay the judgment because the case has not been defended, and the surety is ready to pay his share, judgment should not be rendered in my favor against him. For it is not just for him. to be annoyed by an action, or be compelled to interpose a denial, where he is ready to pay what he owes without a judgment by which his adversary could not compel him to pay a larger sum.

Neratius, Parchments, Book III. He who has not a legitimate father derives his origin from his mother, which should be reckoned from the day on which he was born.

Neratius, Parchments, Book IV. One action is said to prejudge another, with reference to a larger sum of money, when a question arises in court which is connected either wholly, or in part, with a suit involving a larger amount of property.

Neratius, Parchments, Book IV. Where an agent brings an action, an exception based on his bad faith should not be interposed against him, because the suit is that of another, and he is a stranger to it, and the bad faith of one person should not injure another. If he commits a fraudulent act after issue has been joined, it may be doubted whether an exception on this ground can be pleaded; because, by the trial of the case, it becomes that of the agent, and he conducts it, to some extent, in his own name. It has been decided that an exception can be pleaded on account of fraud committed by the agent. The same rule will apply to the case of a guardian who brings an action in the name of his ward. 1In general, however, the following rule should be observed in matters of this kind, that is to say, that fraud should always be punished, even if it will not injure anyone but the person who committed it.

Neratius, Parchments, Book IV. When security is furnished to a ward for the preservation of his property, the stipulation will become operative if anything which should be given or done on account of the guardianship is not executed. For although the property itself may be secure, it is not so where something which should be paid or done on account of the guardianship is not carried into effect.

Neratius, Parchments, Book V. If I directed you to purchase for me a tract of land in which you have a share, it is true that, in compliance with this mandate, you are also required to deliver me your share, after the remaining shares have been purchased. If, however, I should direct you to purchase the said shares at a certain price, and you have bought some of them at any price whatsoever, your share of the proceeds will be subject to diminution, so that the total amount will not exceed that for which I directed the property to be purchased. But if I directed you to make the purchase without fixing any price, and you buy the shares of the other parties at different prices, you should also sell your shares for a sum which would be approved by the judgment of a good citizen.

Neratius, Parchments, Book V. Where it is stated in the contract for the sale of land that if the price is not paid within a certain time, the property will not be considered sold; it must be understood to be the intention that the purchaser shall, in the meantime, be entitled to the crops of said land, but if it is restored to the vendor, Aristo is of the opinion that an action for the recovery of the crops should be granted to him against the purchaser, because nothing derived from the property should remain in the hands of the party who has not complied with his contract.

Neratius, Parchments, Book V. Error in law should not, in every instance, be considered to correspond with ignorance of the fact; since the law can, and should be definitely settled, but the interpretation of the fact very frequently deceives even the wisest men.

Ad Dig. 24,1,44Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 365, Note 5.Neratius, Parchments, Book V. Where a stranger gives property belonging to a husband to the wife of the latter, both of them being ignorant of this fact, and where the husband also does not know that he has donated property belonging to himself, the woman can lawfully acquire said property by usucaption. The same rule of law will apply where anyone who is under the control of the husband, believing himself to be independent, makes a gift to his father’s wife. If, however, the husband should ascertain that the property was his before its title by usucaption vests, he can recover it, and her possession will be interrupted; even though the husband does not wish for this to be done, and the woman becomes aware that it is his; because this is an instance where the woman herself knows that the donation was made by her husband. It is more proper to hold that no impediment to the acquisition of the ownership of the property by her exists; for women are not absolutely prohibited from acquiring the property of their husbands, except where donations are made to them by the latter.

Ad Dig. 30,124Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 626, Note 11.Neratius, Parchments, Book V. If heirs who are expressly mentioned are charged with the delivery of property, it is more reasonable to suppose that they are charged with equal portions, because the enumeration of the persons has the effect to make them all equally liable for the payment of the legacy, for, if they had not been expressly mentioned, they would be liable only for their respective shares in the estate.

The Same, Parchments, Book V. Whatever anyone builds upon the shore of the sea will belong to him; for the shores of the sea are not public like the property which forms part of the patrimony of the people, but resembles that which was formed in the first place by Nature, and has not yet been subjected to the ownership of anyone. For their condition is not dissimilar to that of fish and wild animals, which, as soon as they are taken, undoubtedly become the property of him under whose control they have been brought. 1Where a building which has been erected upon the seashore is removed, it should be considered what the condition of the ground on which it was situated is, that is to say whether it will remain the property of him to whom the building belonged, or whether it will revert to its former condition and again become public; just as if it had never been built upon. The latter should be deemed the better opinion, provided it remains in its former condition as a part of the shore.

Neratius, Parchments, Book V. The usucaption of property which we have obtained for other reasons than because we think that we are entitled to it as our own has been established in order to put an end to litigation. 1A person can acquire by usucaption the property of which he has possession, thinking that it belongs to him; even if this opinion is false. This, however, should be understood to mean that a plausible error of the party in possession does not interfere with his right to usucaption; for instance, if I possess some article because I erroneously think that my slave, or the slave of someone whom I have succeeded as heir at law, purchased it, as ignorance of the act of another is an excusable mistake.

Neratius, Parchments, Book III. A father, against whose son an injury has been committed, should not be prevented from bringing suit for his own injury and that of his son, by two different proceedings.

Neratius, Parchments, Book VI. Hence it is not necessary to seek for the reasons of those laws which have been established; otherwise many rules which are based upon the same and which are now accepted, will be overthrown.

Neratius, Parchments, Book VI. Where a ward, without the consent of his guardian, promises in a stipulation to make payment and does so, he will have a right of action for recovery; for the reason that he did not owe the money even under natural law.

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.

The Same, Parchments, Book VI. And, by all means, any expenses incurred by the husband in harvesting the crops must be paid by him out of his own purse, even though these expenses may have been incurred for the purpose of cultivating the land; and therefore not only those made in gathering the crops are included but also such as are necessary for preserving the property itself, and the husband is entitled to no deduction from the dowry on this account.

Neratius, Parchments, Book VI. Labeo stated that whenever a minor is said to be supposititious, and a controversy arises with reference to his right to his father’s estate, the Prætor should be careful to place him in possession of the same. I think that Labeo intended this to be applicable to a child born after the death of his father, who alleges that he was his son, even though the deceased thought that he had no children; for he who has been acknowledged by the person whose estate is in dispute has a more equitable claim to it than a posthumous child.

Neratius, Parchments, Book VI. If the owner of two houses restricts the use of a passage which had been common to both of them, to one alone, it will only belong to the house to whose use it has been restricted, not only where the timbers by which it is supported form part of it, but even where they all rest upon the walls of another building. Moreover, Labeo, in his Last Works, says, where the owner of two houses built a portico attached to both of them, and made an opening to one of the houses from said portico, and then sold the other house, after imposing upon it the servitude of supporting the portico, that the entire portico will belong to the house which the vendor retained; even though it may extend the entire length of both houses, and is crossed by timbers supported on both sides by the walls of the house which was sold. He, however, says that this rule will not apply when the upper part of the building, which is not joined to the portico, and has no other entrance, belongs to another house than the one by which the portico is supported.

Neratius, Parchments, Book VII. Where the same party defends two actions against the same estate, and judgment is rendered in favor of one of them, the question sometimes arises whether the estate should then be surrendered to him who gained the suit, just as would have been done if no defence had been made against the other; so that, in fact, if judgment should afterwards be rendered in favor of the other party, the defendant would be released from liability; since he was neither in possession, nor had acted fraudulently to avoid being in possession, as he had surrendered the property when he lost the case; or because it was possible that the other plaintiff might be able to obtain a decision in his favor, the defendant should not be obliged to surrender the estate unless security is given him, for the reason that he was compelled to defend the action for recovery of the estate against the other party. The better opinion is that it should be the judge’s duty to come to the relief of the defeated party by security or a bond, since in that way the property remains for the benefit of him who is slow in asserting his rights against the successful plaintiff who preceded him.

Neratius, Parchments, Book VII. Although you have become surety for my slave in a contract which was made with reference to my business, for example, if where a slave had purchased grain for the maintenance of the entire body of slaves, you gave security to the vendor of the grain; still, the better opinion is that you may bring the action De peculio on this account, but not an action based on the employment of property in the affairs of another; so that an action on the latter ground will lie in any contract solely in favor of the person who loaned the very property which has been employed in the affairs of the matter.

Neratius, Parchments, Book VII. It was held by both Aristo and Celsus, the father, that property could be deposited, and the performance of a mandate assumed, under the following condition, namely: “That the property should be at the risk of the party who received the deposit, or undertook the performance of the mandate.” This appears to me to be correct.

Neratius, Parchments, Book VII. Security may also be given for the payment of legacies to him to whom an action is granted on account of said legacies as against one who, having rejected his appointment as heir, has acquired the estate on the ground of intestacy; and, unless security is furnished, he will be placed in possession of it for the purpose of preserving the legacies, as the Prætor desires them to be secure, just as in the case of those due under the Civil Law. Aristo holds the same opinion.

The Same, Parchments, Book VII. If my agent recovers property which has been stolen from me, although, generally speaking, it is now almost conclusively settled that we can obtain possession by means of an agent, the property, nevertheless, will not again come under my control so that it can be acquired by usucaption, because to decide otherwise would be fallacious.

Neratius, Parchments, Book VII. When, in a second action, the question arises whether the property is the same as that which was the object of the first one, the following things must be considered: first, the parties interested; second, the property for which suit was brought; and third, the immediate cause of action. For now it is of no consequence whether anyone believes that he has a good cause of action, any more than if, after judgment had been rendered against him, he should find new documents to strengthen his case.