The Same, On Plautius, Book V. Where a joint-owner is sued with reference to a slave held in common, and judgment is rendered against him, he can bring a suit for partition even before he complies with the judgment; for, if a noxal action is brought against one he can immediately bring suit against his co-heir for the delivery of his share to him, giving security at the same time that, if he does not deliver the slave, he will return the share.

The Same, On Plautius, Book V. Where a party who is about to receive a loan of money promises his future creditor that he will repay him, he has the power to escape liability by not accepting the money.

Ad Dig. 12,5,9ROHGE, Bd. 8 (1873), S. 171: Widerrechtliche Einwirkung des einen Paciscenten auf die Willensbestimmung des Andern durch Bedrohungen.The Same, On Plautius, Book V. If I lend you clothes to be used by you, and afterwards I pay money for their return, it has been held that I can properly proceed by means of a personal action for recovery; because, although the money was paid for a certain purpose, and the purpose was accomplished, nevertheless, it was improperly paid. 1If you receive money from me as an incentive for you to return property which was rented to you, or sold to you, or placed in your custody, I will be entitled to an action against you based on lease, sale, or mandate; but if I paid you the money to induce you to deliver to me something which you owed by reason of a will or a stipulation, there will be merely a right to bring suit for recovery of the money paid you for this purpose; as was stated by Pomponius.

Paulus, On Plautius, Book V. If I rent to the owner a pledge which was delivered to me I will retain possession of the same by renting it, because before the debtor leased it he did not have possession, while I have the intention of retaining it, and the party who leases it has not the intention of acquiring the same.

Paulus, On Plautius, Book V. Even if the person is not the heir, but thinks that he is, and sells the property, the profit he has obtained must be wrested from him in the same way.

Ad Dig. 17,1,45ROHGE, Bd. 15 (1875), Nr. 73, S. 263: Verpflichtung des neg. gestor zur Herausgabe dessen, was er in Ausführung des Geschäfts erworben, an den dom. negot. Beweislast, wenn er es aus einem andern Grunde in Besitz genommen.Paulus, On Plautius, Book V. If you have purchased a tract of land by my direction, can you bring an action on mandate against me, after you have paid the purchase money, or before you do so, in order to avoid selling your own property? It is rightly held that an action on mandate will lie, in this instance, to compel me to assume the obligation by which you are bound to the vendor; for I myself could bring an action against you to force you to assign your rights of action against the vendor. 1If, by my direction, you have undertaken the defence of a case which is still in court, you cannot take legal measures to transfer the defence to me, without good reason, for you have not yet executed the mandate. 2Moreover, if, while you are transacting my business, you bind yourself to one of my creditors, it must be said that before you make payment, you will be entitled to an action against me to compel me to assume the obligation, and if the creditor refuses to change the obligation, I will be obliged to furnish security to defend you against him. 3If I give an undertaking that you will appear in court, and I do not produce you, or, if I have assumed your liability, I can bring an action on mandate to compel you to release me before I make payment. 4If I should direct you to pay my creditor, and you should bind yourself to do so, and, in consequence, have judgment rendered against you; the more humane opinion is that, in this instance, an action of mandate will lie in your favor against me. 5Wherever we have stated that an action on mandate can be brought before the money has been paid, the mandatary will not be liable for non-payment, but only for his act; and as it is just that, where we have obtained a right of action against a mandatary, we should be compelled to assign it to the mandator; so, on the same principle, we should be bound in an action of mandate to release him from liability. 6If the surety should, on account of reasonable expenses incurred, pay a larger sum than that for which he bound himself, he for whom he became surety must make good the entire amount. 7I entered into an agreement with your debtor for the payment of what you owe me, at your risk. Nerva and Atilicinus say that I can bring an action on mandate against you with reference to what I have not previously been able to collect from him, even though the mandate had reference to your affairs. This is reasonable, for then he who substituted the debtor is not released if his creditor follows the claim, and it is not stipulated by him that this is at the risk of the debtor. 8Ad Dig. 17,1,45,8ROHGE, Bd. 15 (1875), Nr. 7, S. 19: Verweisung des Gläubigers eines Solidarschuldners an den andern unter Sicherstellung des Gläubigers. Keine Einrede daraus für den andern Schuldner?The rule is the same if I should bring an action against the principal debtor by the direction of the surety, because, through executing the mandate, the surety would be released from his former liability.

Paulus, On Plautius, Book V. I purchased a house, both the vendor and myself being ignorant at the time when the sale was made that it had been burned. Nerva, Sabinus, and Cassius say that nothing was sold, even though the site remained, and that the money which had been paid could be recovered by suit. If, however, any part of the building was left, Neratius says that, in questions of this kind, it is important to ascertain how much of it escaped being consumed, and if the greater portion of the same was burned, the purchaser cannot be compelled to perfect the contract, and can even recover whatever he may have paid. If, however, half of the house, or even less than half, has been burned, the purchaser will be compelled to comply with the conditions of the sale, after an appraisement of the property had been made in accordance with the judgment of a good citizen; and whatever diminution of value was found to have been occasioned by the fire should be deducted from the amount to be paid by the purchaser. 1But if the vendor knew that the house had been burned, and the purchaser was ignorant of the fact, the sale will not stand, if the entire building was destroyed before the transaction took place. If, however, any part of the building remains, the sale will be valid, and the vendor must refund to the purchaser the amount of his interest in what was destroyed. 2In like manner, also, the question should be discussed from the opposite point of view, that is, where the purchaser was aware that the house had been burned, but the vendor was ignorant of it; and in this case the sale must stand, and the entire price be paid by the purchaser to the vendor, if this has not already been done, for if it has been paid it cannot be recovered. 3Where both purchaser and vendor knew that the house had been entirely, or partially destroyed by fire, the transaction is of no effect, on account of fraud being set off on both sides, and a contract which depends upon good faith cannot stand where both parties are guilty of deceit.

Ad Dig. 19,4,2Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 392, Note 2.The Same, On Plautius, Book V. Aristo says that an exchange resembles a sale in a case where a guarantee must be given that a slave is sound, and free from liability to arrest for theft or damage committed, and that he is not a fugitive who must be surrendered on this account.

Paulus, On Plautius, Book V. I sold you a house, with the understanding that the rent of the first year should belong to me, and that of the ensuing years should belong to you, and that the right of each of us should be dependent upon the pledges given by the tenant. Nerva and Proculus hold that unless the pledges are sufficient to secure the rent due to both vendor and purchaser, the right to all the pledges first belongs to me, because nothing has been clearly stated as to whether or not the sums shall be divided pro rata with reference to all the pledges, and if there is any surplus remaining after the first year it will belong to you. Paulus says this is a question of fact, but it is probable that the intention of the parties was that the right in the pledges should follow the first rent that is due.

The Same, On Plautius, Book III. When a woman brings an action for the recovery of her dowry, after her marriage has been dissolved, she must indemnify her husband where he has given security against the infliction of threatened injury, if she wishes to recover her dowry, so that she may secure her husband against any risk.

Paulus, On Plautius, Book V. If a guardian should bind himself for his ward, he is entitled to the counter-action, even before he has paid the debt.

Paulus, On Plautius, Book V. Whenever a slave is sold on condition of being manumitted within a specified time, even if the vendor and the purchaser should both die without leaving any heirs, he will be entitled to his freedom. This the Divine Marcus stated in a Rescript. Even though the vendor should change his mind, the slave will, nevertheless, become free.

The Same, On Plautius, Book V. We cannot acquire by usucaption property which has been taken in pledge, because we possess it in behalf of another. 1It has been decided that anyone who has purchased property in good faith from an insane person can acquire it by usucaption. 2Ad Dig. 41,3,13,2Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 176, Note 7.If I direct you to buy a tract of land, you can obtain it by usucaption, after it has been delivered to you for this reason, although you cannot be considered to possess it as yours, as the fact that you are liable to an action on mandate makes no difference.

Paulus, On Plautius, Book V. If a slave who is claimed under the terms of a stipulation dies after issue has been joined in a case, the defendant will not be released from liability, and it has been decided that he must render an account of the profits.

The Same, On Plautius, Book III. When a man, who owes Stichus under a stipulation, manumits him before being in default, and the slave dies before the promisor is sued for not delivering him, the latter will not be liable. For he is not considered to be to blame because he did not deliver the slave.

Ad Dig. 46,3,61ROHGE, Bd. 24 (1879), Nr. 20, S. 66: Begriff der Zahlung. Willensübereinstimmung.The Same, On Plautius, Book V. Whenever what I owe you becomes yours in perpetuity, and the title is perfect, and what has been paid cannot be recovered, the release will be complete.

The Same, On Plautius, Book V. In a contract of sale, any sentence of doubtful signification is interpreted against the vendor. 1A claim which is ambiguous should be construed in such a way as to be favorable to the plaintiff.