Ad Dig. 12,1,5ROHGE, Bd. 15 (1875), Nr. 102, S. 363, 371: Feststellung des Zeitpunkts des Verzugs mit Rücksicht auf die subjective Auffassung des Säumigen über die Sachlage.Pomponius, On Sabinus, Book XXII. Ad Dig. 12,1,5 pr.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 371, Note 8.If you are obliged to deliver something to me, and it should afterwards be lost on account of some act of yours which prevented you from delivering it to me, it is established that the loss must be borne by you. Where, however, the question arises whether you performed the act, it should be considered not only whether this was in your power or not, but also whether you were guilty of malicious intent in order to prevent it from being in your power; and also whether there was any just reason why you should know that you were compelled to deliver me the article.

Pomponius, On Sabinus, Book XXII. Where one of your slaves was suspected of theft by a certain Attius, and you surrender the slave to be put to torture, under the condition he should be returned to you, if he were found to be not guilty; and then Attius delivered him to the Prefect of the Watch as one who was caught in the act, and the Prefect of the Watch inflicted the extreme penalty upon him; you are entitled to an action against Attius on the ground that he was obliged to deliver you the slave, because he was required to do this before his death. Labeo says that you are entitled to an action for production, since Attius is responsible for preventing him from being produced. Proculus, however, says that for Attius to be obliged to deliver the slave you must have made him his slave, in which instance, you could not bring an action for his production; but if he had still remained yours, you could bring an action against Attius for theft, because he was making use of the property of another in such a way that he must have been aware that he was doing so against the will of the owner, or that if the latter had been aware of it he would have forbidden it.

Pomponius, On Sabinus, Book XXII. Where money has been obtained through a stipulation which was extorted by force, it is established that an action will lie for its recovery.

Pomponius, On Sabinus, Book XXII. Ad Dig. 12,6,19 pr.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 123, Note 3.Where a debtor is released from liability by way of inflicting a penalty of the person to whom the debt is due, the natural obligation remains unimpaired; and therefore if the money is paid it cannot be recovered. 1Even though a party may receive payment of a debt, due to him, still, if he who pays gives what he does not owe, there will be a right of action for its recovery; for instance, where anyone erroneously thinks that he is an heir or the possessor of the property of an estate pays a creditor of the same, in this instance, the true heir will not be released, and the party who paid can bring an action for recovery; for although anyone may receive something which is due to him, still, if the party who pays it pays what is not due, an action for its recovery will lie. 2If I am under the false impression that I owe a debt, and I pay it in coin, part of which belongs to another and part of it to me, I can bring an action for half the amount, and not for half of each share. 3If I think that I am obliged to deliver either Stichus or Pamphilus, while in fact I am obliged to deliver Stichus, and I deliver Pamphilus; I can bring an action for property given which was not due; for I cannot be held to have made the delivery in payment of what I owe. 4Where two debtors who owed ten aurei together paid twenty, Celsus says each of them can bring an action for the recovery of five; because since they owed ten, and paid twenty, what both paid over and above what was due both can sue to recover.

Pomponius, On Sabinus, Book XXII. Moreover, if I think that I have promised anything to you or to Titius, while, in fact, no promise was made to either, for Titius was not personally included in the stipulation, and I deliver the article to Titius, I am entitled to an action to recover it from him. 1Where I, through mistake, conveyed a tract of land as free, when I ought to have reserved a right of way; I am entitled to a right of action for the recovery of an uncertain amount, in order that a right of way may be granted me.

Pomponius, On Sabinus, Book XXII. Or where money was lent with the understanding that it should be repaid at a certain place.

Pomponius, On Sabinus, Book XXII. Where a deposit was made in Asia to be returned at Rome, it is held that the intention was that this should be at the expense of the party who made the deposit, and not at that of him with whom it was. placed. 1A deposit should be returned to the place in which it is found, without any fraudulent act of the party with whom the property was deposited. It, indeed, makes no difference where the deposit was made. The same principles apply generally to all bona fide actions. It must be said, however, that if the plaintiff wishes the property to be transported to Rome at his expense and risk, he should be heard; for this is also done in the action for production. 2An action on deposit can properly be brought against a sequestrator, and it is also granted against his heir. 3Ad Dig. 16,3,12,3Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 124, Note 9.Just as where property which must be delivered in compliance with the terms of a stipulation or a will, is destroyed after issue has been joined; so, also, a deposit from the day on which it was made will be at the risk of the party in whose hands it was placed, if, at the time issue was joined, the defendant could have restored it, but did not do so.

Pomponius, On Sabinus, Book XXII. If any accessions have subsequently been made to the peculium, they must be returned to the vendor; as, for instance, the offspring of a female slave, and anything which has been obtained through the labor of a sub-slave.

Pomponius, On Sabinus, Book XXII. You permitted me to dig chalk on your land on condition that I would fill up the place from whence I took it. I took away the chalk, but did not fill up the excavation. The question arose, what action are you entitled to? It is certain that a civil action for an unascertained amount of damages will lie. Where, however, you sold me the chalk, you can proceed by an action on sale. If, after taking out the chalk, I should fill up the excavation, and you do not allow me to remove the chalk, I will then have a right of action for production against you, because it belongs to me, as I dug it with your consent. 1You gave me permission to sow grain on your land, and to remove the crop. I sowed it, but you did not allow me to remove the grain. Aristo says that a civil action will not lie, and it may be a question whether an action in factum should be granted, but that one on the ground of bad faith will certainly be available.

Pomponius, On Sabinus, Book XXII. Where an heir, who had a right to retain a fourth, transferred the entire estate, and did not provide for himself by a stipulation, Aristo says his case is similar to that of those who fail to reserve property to which they have no other right; but that he can recover or obtain possession of the assets of the estate, and can make use of an exception on the ground of bad faith against the party claiming the property, and can notify the debtors of the estate that payment should not be made.

The Same, On Sabinus, Book XXII. If I am the sole heir to an estate, but believe that you are an heir to half of the same, and I deliver half of the estate to you, it is very probable that you cannot acquire the property by usucaption, because what is in possession of an heir cannot be obtained in this way by another, as the heir; and you have no other ground for possession. This is only true when done under the terms of a settlement. We hold that the same rule applies if you think that you are the heir; for, in this instance, the possession of the true heir will prevent you from obtaining the property by usucaption.

Pomponius, On Sabinus, Book XXII. You delivered to me a slave whom you erroneously thought I was entitled to under the terms of a stipulation. If I knew that you did not owe me anything, I cannot acquire the slave by usucaption; but if I did not know it, the better opinion is that I can acquire him by usucaption, because the delivery, which was made for what I think to be a good consideration, is sufficient to enable me to possess as my own the property which has been delivered to me. Neratius adopted this opinion, and I think it is correct.

Pomponius, On Sabinus, Book XXII. For instance, if anyone promises to commit homicide, or sacrilege. It is, however, the duty of the Prætor to refuse an action in all obligations of this kind. 1If I should stipulate as follows, “Do you promise to pay if you do not ascend to the Capitol within two years?” I cannot lawfully bring an action against you until the term of two years has expired.

Pomponius, On Sabinus, Book XXII. A surety can be taken for property which was loaned for use, or deposited, and he will be liable; even if the deposit or the loan was placed in the hands of a slave, or a ward, but only where those for whom security was given have been guilty of fraud or negligence.

The Same, On Sabinus, Book XXII. If I pay you by giving you an article of mine which was due to you, but which was pledged to another, I will not be released; because the property can be recovered from you by the person who received it in pledge.

Pomponius, On Sabinus, Book XXII. In the term “To do” is also included that “To give.”

Pomponius, On Sabinus, Book XXII. Where either the plaintiff or the defendant attempts to prove a lucrative title, the case of the plaintiff is the more difficult to establish.