The Same, on Sabinus, Book XXVII. The Emperor Hadrian set forth in a Rescript addressed to Publicius Marcellus, that if a free woman after having been condemned to death while pregnant brought forth a child it would be free; and that it was customary to hold her until she was delivered. Also, where a woman who has conceived in lawful marriage is interdicted from fire and water, the child she brings forth is a Roman citizen, and remains under the control of its father.

Ulpianus, On Sabinus, Book XXVII. The law of nature is that a child born out of lawful matrimony follows the mother, unless a special law provides otherwise.

The Same, On Sabinus, Book XXVII. Slaves of this description must comply with the condition prescribed, if no one prevents them from doing so, and the condition is possible. 1Where, however, the slave is ordered to comply with the condition with respect to the heir, what must be said?” If he complies with it he will immediately become free, although the heir may not consent. If the heir prevents him from complying with the condition, as, for instance, where he refuses ten aurei which the slave was ordered to pay him, there is no doubt that the slave will be free, because it is the fault of the heir that the condition was not fulfilled. And it makes little difference whether he tenders the amount out of his peculium, or whether he has obtained it from some other source, for it is established that a slave who pays money out of his peculium will be entitled to his freedom, whether he is ordered to pay it to the heir or to anyone else. 2Hence, the question arises, if a sum of money should be due to the said slave, either from the heir, because the slave had advanced it in transacting the business of his master, or from a stranger, and the heir does not wish to sue the debtor, or to pay the money to the slave, will the latter be entitled to his freedom on account of the delay he suffers through the fault of the heir? Either the peculium was bequeathed to the slave, or it was not; if it was bequeathed to him, Servius says that it is the heir who is responsible for the delay of the slave obtaining his freedom, because something is due to him from the estate of his master which is not paid by the heir. Labeo adopts this opinion. Servius also approves it, and says that if the heir causes delay for the reason that he is unwilling to collect money from the debtors of the slave, the latter will be entitled to his freedom. The opinion of Servius seems to me to be correct. Hence, as we think this opinion to be true, let us see whether the same rule should not apply, even where the peculium was not bequeathed as a preferred legacy to the slave. For it is settled that a slave, in order to be conditionally free, can make a payment out of his peculium whether he is ordered to do so to the heir, to himself, or to someone else; and if the heir should prevent him from doing so, the slave will be entitled to his freedom. Finally, this is given to the master of the slave as a remedy, that is, he is forbidden to pay to a stranger what he was ordered to pay, lest he may run the risk of losing both the money and the slave; hence it can be maintained that, if the heir does not wish to collect the claim from the debtors of the slave, or to pay him himself, so that he may have the means with which to comply with the condition, the slave will be entitled to his freedom. Cassius also adopted this opinion. 3Again, the slave will not only obtain his freedom when he is prevented from paying what he was ordered by the testator to pay, but also if he is forbidden to ascend to the Capitol, or if he is prevented from going to Capua; for anyone who hinders a slave from taking a journey is understood rather to desire that he shall lose his freedom than to wish to avail himself of his services. 4Where the slave is ordered to pay a co-heir, and another of the heirs prevents him from doing so, he will also become free; but he to whom he was ordered to make payment and become free will be entitled to an action in partition against the one who prevented him, in order to obtain the amount of his interest in not having the slave prevented from paying him. 5If a slave who is ordered to pay ten sesterces and become free pays five, he will not be entitled to his freedom unless he pays the entire sum. Therefore, in the meantime, the owner of the five sesterces can claim them, but if the balance should be paid, then the first five, the ownership of which had not previously passed to him to whom they were given will be acquired by him; hence, the transfer of the first sum paid will remain in suspense, so that the sesterces will not, by retroactive effect, become the property of him who received them, but only where the remainder of the amount has been paid. 6If the slave should pay more than he had been ordered to do (for instance, if he had been ordered to pay ten sesterces, and he pays twenty), whether he counted the coins, or gave them in a bag, he will obtain his freedom, and can recover the surplus. 7If anyone should sell, without his peculium, a slave who had been ordered to pay ten sesterces and become free, will the slave immediately obtain his liberty, because he has been prevented from making payment out of his peculium, for the reason that he was sold without it, or will he become free from the time that he was forbidden to touch his peculium? I think that he will only become free from the time when he wished to make payment, and was prevented from doing so, and not from the very day when he was sold. 8Where anyone prevents a slave, who was ordered to pay ten aurei and become free from working, or where the heir deprives him of what he has earned by his labor, or if he should give the heir whatever he has obtained in this way, will he be entitled to his freedom? I think that if he should pay him what he has earned by his labor, or anything that he has obtained from any source whatsoever, he will be entitled to his freedom. If, however, he was prevented from working, he will not become free, because he is obliged to work for his master. I think that it is clear that he will become free if he should be deprived by his master of money earned by his labor, because he has been deprived of the power to pay it out of his peculium; but if the testator ordered him to pay the said sum of money earned by his labor, and he is prevented from working, I have no doubt that he will be entitled to his freedom. 9If, however, the slave should have abstracted any silver plate, or sold other property and made payment out of the proceeds, he will obtain his freedom, although if he has paid money which he stole he will not do so; for he is not considered to have given the said money but rather to have returned it. But if he stole money belonging to other persons, and paid it to the heir, he will not obtain his freedom, for the reason that the money which was stolen can be recovered from him who received it; still, if it was used in such a way that it can, under no circumstances, be recovered, the slave will be entitled to his freedom. 10Moreover, not only where the heir delays in making a grant of freedom, but where a guardian, curator, agent, or anyone else by whom the condition should be complied with does so, we say that the slave will be entitled to his freedom. And, indeed, this is our practice, in the case of a slave who is to be conditionally free, and it is sufficient that it is not his fault that he does not comply with the condition. 11If anyone should be ordered to pay the heir within thirty days after the death of the testator, and the heir enters upon the estate after that time has elapsed, Trebatius and Labeo say that if he did so without acting fraudulently, the slave will obtain his freedom within thirty days after the acceptance of the estate. This opinion is correct. But what course must be pursued if the heir purposely delayed; will the slave be entitled to his freedom on this account from the time when the estate was entered upon? What if he had the money then, but did not have it after the estate was accepted? In this case, however, the condition is held to have been fulfilled, as the slave was not responsible for it not having been complied with in the first place. 12Where a slave receives his freedom under the following clause, “Let him be free when he can pay him ten aurei,” Trebatius says that, although he may have the ten aurei, or be in a position to obtain and keep his peculium, still he will not be entitled to his freedom unless he pays the money, or is not to blame for failing to pay it. This opinion is correct. 13Stichus was ordered to be free if he paid ten aurei to the heir annually for three years. If the heir was responsible for the nonpayment of the first instalment, it is established that the slave must wait until the date of the third payment, because the time is prescribed, and there are two payments remaining. If, however, the slave has only the ten aurei which he offered when the first payment was due, would it be of any advantage to him if he tendered them at the time of the second payment, or even at the time of the third, provided the second had not been accepted? I think that it would be sufficient for him to do so, and that the heir has no right to change his mind. Pomponius also adopts this opinion. 14What must be done if the slave who was ordered to make the three annual payments should tender the entire amount to the heir without waiting for it to become due? Or if, having paid ten aurei at the end of the first year, he should offer twenty at the end of the second? The more indulgent interpretation is that he will be entitled to his freedom, as benefit will accrue to both parties; for the slave will obtain his freedom sooner, and the heir will receive without delay what he would have obtained after a certain time. 15Where freedom is granted to a slave, if he serves the heir for five years, and the heir should manumit him, he immediately becomes free, as it is the fault of the heir that he did not serve him; although, if the heir did not wish him to do so, he would not become free until after the term of five years had elapsed. The reason for this is evident, as a manumitted slave can no longer remain in servitude. But the master who does not desire the slave to serve him can still permit this to be done within five years. The slave, however, cannot serve him for the entire term of five years but he can do so for a shorter period. 16Julianus, also, in the Sixteenth Book of the Digest, says that if Arethusa was granted her freedom under the condition that she should bring forth three slaves, and the heir was responsible for her not doing so (for instance, because he gave her some drug to prevent her from conceiving), she will immediately become free. For why should we wait? It is just the same as if the heir should cause her to have an abortion, because she could have three children at a birth. 17Likewise, if the heir should sell and deliver a slave who is to be liberated conditionally, and who has been ordered to serve him, I think that the slave will immediately be entitled to his freedom.

Ulpianus, On Sabinus, Book XXVII. If a female slave who is to become free conditionally is sentenced to servitude as punishment for crime, and after her conviction the condition upon which her freedom is dependent is fulfilled, although it will be of no advantage to her, it will, nevertheless, benefit any child which she may have, for it will be born free, just as if its mother had not been convicted. 1What, however, would be the result if such a female slave should conceive while in servitude, and, having been captured by the enemy, should have a child after the condition upon which her freedom was dependent had been complied with; would her child be free at its birth? There is no doubt whatever that it would, in the meantime, be the slave of the enemy; but it is also true that it would become free by the right of postliminium, because if the mother had been in her own country the child would have been born free. 2It is clear that the more equitable opinion is that, if she should conceive while in the hands of the enemy, and bring forth the child after the condition had been fulfilled, it could profit by the right of postliminium and become free. 3A slave to be free conditionally will obtain his liberty from his purchaser if the condition is complied with. It must be remembered that this rule is applicable to slaves of both sexes. If the condition is fulfilled, it not only binds the person who purchased the slave, but also all those who have obtained ownership of him by any title whatsoever. Therefore, whether the slave has been bequeathed to you by the heir, or awarded to you in court, or acquired by you through usucaption, or transferred to you, or has become your property by any other right, we say that, beyond any doubt, the condition can be complied with so far as you are personally concerned. The same can be said with reference to the heir of the purchaser. 4Where a son under paternal control is appointed an heir, and a slave to be free conditionally is directed to pay to the son a certain sum of money, and be free, he will obtain his freedom by paying the said sum either to the son, or to his father; because the father is entitled to the benefit of the estate. If, however, he should pay the father after the death of the son, he will become free, as having made payment to the heir of the heir. For if a slave is ordered to pay a sum of money to a stranger, and become free, and the latter becomes the heir of the heir, he will comply with the condition not with reference to the stranger, but as it were, with reference to the heir. 5Where a slave is directed to pay ten aurei and become free, and he is sold after having paid five, he must pay the remaining five to the purchaser. 6If your slave should purchase another slave, who is to be free conditionally, he must pay you what he was ordered to pay to the heirs. If, however, he has paid your slave, I think that he will be free, provided your slave bought him with money belonging to his peculium, and you have not deprived him of it; so that, in this way, he will be understood to have paid you, just as if payment had been made to any one of your slaves with your consent. 7When a slave is ordered to be free, not upon the payment of a sum of money but if he renders his accounts, let us see whether this condition will pass to the purchaser. And it must be remembered that usually only those conditions which refer to the payment of money pass to a purchaser, and that such as refer to acts to be performed do not pass to him; for instance, if he gives his son instruction, for these conditions attach to the person of those upon whom they are imposed. The condition of rendering an account, however, which implies the existence of a balance, has reference to the payment of money; but the production of the books containing the amounts, and the calculation and examination of the accounts themselves, as well as their revision and investigation, have reference to acts to be performed. Therefore, can the slave obtain his freedom by paying the balance remaining in his hands to the purchaser, and by complying with the rest of the condition which concerns the heir? I think that the payment of the balance passes to the heir. Hence it happens that the condition may be divided. Pomponius, also, stated this opinion in the Eighth Book on Sabinus.

Ad Dig. 41,3,7Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 103, Noten 12, 15.The Same, On Sabinus, Book XXVII. Therefore, anyone who begins to have possession at the sixth hour of the day of the Kalends of January will complete the usucaption on the sixth hour of the night preceding the Kalends of January.

Ulpianus, On Sabinus, Book XXVII. He who delivers a house in the best condition possible does not mention that a servitude is due to it; but only that the house is free, and that no servitude is imposed upon it.

Ulpianus, On Sabinus, Book XXVII. He who is permitted to do more shall be allowed to do less.