THE CIVIL LAW
INCLUDING
The Twelve Tables, The Institutes of Gaius, The Rules of
Ulpian, The Opinions of Paulus, The Enactments
of Justinian, and The Constitutions of Leo:
Translated from the original Latin, edited, and compared with all accessible systems of jurisprudence ancient and modern.
By S. P. SCOTT, A. M.
Author of "History of the Moorish
Empire in Europe," Translator of
the "Visigothic Code"
IN SEVENTEEN VOLUMES VOL. XIII.
CINCINNATI
THE CENTRAL TRUST COMPANY Ejcecutor of the Estate Samuel P. Scott, Deceased
PUBLISHERS
CONTENTS OF VOLUME XIII.
THE CODE OF JUSTINIAN.
SECOND EDITION. (Continued.)
BOOK IV.
TITLE I. PAGE CONCERNING PROPERTY LOANED AND THE OATH ...................... 3
TITLE II. WHERE A CERTAIN THING is DEMANDED ............................. 7
TITLE III. CONCERNING SUFFRAGE ............................................ 11
TITLE IV. CONCERNING THE PROHIBITED SEQUESTRATION OF MONEY .............. 12
TITLE V.
CONCERNING THE RECOVERY OF A DEBT WHICH WAS PAID WITHOUT BEING DUE ........................................................ 12
TITLE VI.
CONCERNING THE ACTION FOR RECOVERY OF PROPERTY GIVEN FOR SOME CONSIDERATION ............................................... 14
TITLE VII.
CONCERNING THE ACTION FOR RECOVERY ON ACCOUNT OF A DISHONORABLE CONSIDERATION ............................................... 17
TITLE Vill. CONCERNING THE ACTION FOR THE RECOVERY OF STOLEN PROPERTY ..... 18
TITLE IX.
CONCERNING THE PERSONAL SUIT FOR RECOVERY UNDER THE LAW, WHERE THERE is No CONSIDERATION, OR WHERE THE CONSIDERATION is UNJUST ..................................................... 19
TITLE X. CONCERNING OBLIGATIONS AND ACTIONS ............................. 19
TITLE XI. ACTIONS SHOULD BE BROUGHT BY HEIRS AND AGAINST HEIRS .......... 22
TITLE XII.
A WIFE CANNOT BE SUED ON ACCOUNT OF HER HUSBAND, OR A HUSBAND ON ACCOUNT OF His WIFE, OR A MOTHER ON ACCOUNT OF HER SON .. 23
TITLE XIII.
A SON CANNOT BE SUED ON ACCOUNT OF His FATHER, OR A FATHER ON ACCOUNT OF His EMANCIPATED SON, OR A FREEDMAN ON ACCOUNT OF His PATRON, OR A SLAVE ON ACCOUNT OF His MASTER ......... 24
A NEW CONSTITUTION OF FREDERICK ............................... 25
TITLE XIV. WHETHER A SLAVE is LIABLE FOR His OWN ACT AFTER His MANUMISSION 26
TITLE XV.
WHEN THE TREASURY, OR A PRIVATE INDIVIDUAL, CAN OR SHOULD SUE DEBTORS OR THEIR DEBTORS ................................... 27
TITLE XVI. CONCERNING HEREDITARY ACTIONS ................................. 28
TITLE XVII.
FOR WHAT AN AMOUNT HEIRS CAN BE SUED ON ACCOUNT OF THE CRIMES OF DECEASED PERSONS ........................................ 29
TITLE XVIII. CONCERNING THE SUM OF MONEY AGREED UPON ..................... 29
TITLE XIX. CONCERNING PROOFS .............................................. 31
TITLE XX. CONCERNING WITNESSES .......................................... 36
TITLE XXI.
CONCERNING THE CONFIDENCE TO BE REPOSED IN WRITTEN INSTRUMENTS, AND THEIR Loss, AND WHEN RECEIPTS AND COUNTER-RECEIPTS SHOULD BE GIVEN, AND CONCERNING WHAT THINGS CAN BE DONE WITHOUT THEIR BEING COMMITTED TO WRITING ................. 41
TITLE XXII.
WHAT HAS ACTUALLY BEEN DONE HAS MORE FORCE THAN WHAT HAS BEEN SIMULATED AND EXPRESSED IN WORDS ..................... 48
TITLE XXIII. CONCERNING LOANS FOR USE ...................................... 52
TITLE XXIV. CONCERNING THE ACTION OF PLEDGE ............................... 52
TITLE XXV. CONCERNING THE ACTIO INSTITORIA AND THE ACTIO EXEKCITORIA ....... 55
TITLE XXVI.
WHEN BUSINESS is SAID TO HAVE BEEN TRANSACTED WITH ONE WHO is UNDER THE CONTROL OF ANOTHER, OR WITH REFERENCE TO PECULIUM; OR WHERE SOMETHING HAS BEEN DONE BY THE ORDER OF ANOTHER; OR WHERE ANYTHING is EMPLOYED FOR THE BENEFIT OF THE PROPERTY OF THE PERSON IN CONTROL ...................... 56
TITLE XXVII. BY MEANS OF WHAT PERSONS PROPERTY CAN BE ACQUIRED BY Us ..... 59
TITLE XXVIII. CONCERNING THE MACEDONIAN DECREE OF THE SENATE ............... 61
TITLE XXIX. CONCERNING THE VELLEIAN DECREE OF THE SENATE .................. 63
TITLE XXX. CONCERNING MONEY WHICH is NOT COUNTED OUT ................... 70
TITLE XXXI. CONCERNING SET-OFF ............................•••••••.••••••••• 75
TITLE XXXII. CONCERNING INTEREST ...........................••••••••••••••••• 78
TITLE XXXIII. CONCERNING MARITIME LOANS ..................................... 84
TITLE XXXIV. CONCERNING THE ACTION ON DEPOSIT, AND THE COUNTER ACTION ...... 85
TITLE XXXV. CONCERNING THE ACTION OF MANDATE, AND THE COUNTER ACTION ..... 87
TITLE XXXVI. CONCERNING A SLAVE WHO HAS DIRECTED A STRANGER TO PURCHASE HIM 92
TITLE XXXVII. CONCERNING THE ACTION OF PARTNERSHIP .......................... 92
TITLE XXXVIII. CONCERNING THE CONTRACT OF PURCHASE AND SALE .................. 94
TITLE XXXIX. CONCERNING THE INHERITANCE OR SALE OF RIGHTS OF ACTION ......... 96
TITLE XL.
WHAT PROPERTY CANNOT BE SOLD, AND WHAT PERSONS ARE FORBIDDEN TO SELL OR PURCHASE IT .....................••••••••••••••••• 98
TITLE XLI. WHAT PROPERTY SHOULD NOT BE EXPORTED .,..................••••• 98
TITLE XLII.
QQ
CONCERNING EUNUCHS ..................••••••••••••••••••••••••••
TITLE XLIII. CONCERNING FATHERS WHO HAVE SOLD THEIR CHILDREN ............. 99
TITLE XLIV. CONCERNING THE RESCISSION OF A SALE .....................••••••• 10°
iiiLlCi A.J-IV.
WHEN IT is PERMITTED TO KEFUSE TO COMPLY WITH A CONTRACT OF SALE 103
TITLE XLVI. WHERE A SALE is MADE ON ACCOUNT OF PUBLIC CONTRIBUTIONS ....... 104
TITLE XLVII.
LAND CANNOT BE PURCHASED WITHOUT THE PAYMENT OF TAXES OR BALANCES WHICH ARE DUE ...................................... 104
TITLE XLVIII. CONCERNING THE RISKS AND ADVANTAGES ATTACHING TO PROPERTY SOLD. 105
TITLE XLIX. CONCERNING THE ACTIONS OF PURCHASE AND SALE ................... 106
TITLE L.
WHERE ANYONE HAS PURCHASED PROPERTY FOR ANOTHER, OR FOR HIMSELF IN THE NAME OF ANOTHER, OR WITH MONEY BELONGING TO ANOTHER .................................................... 109
TITLE LI.
CONCERNING THE PROHIBITED ALIENATION AND HYPOTHECATION OF THE PROPERTY OF OTHERS ......................................... Ill
TITLE LII. CONCERNING THE ALIENATION OF PROPERTY OWNED IN COMMON ....... 112
TITLE LIII.
THOSE WHO HAVE CHARGE OF THE AFFAIRS OF OTHERS ARE NOT FORBIDDEN TO ALIENATE THEIR OWN PROPERTY ..................... 113
TITLE LIV.
CONCERNING AGREEMENTS ENTERED INTO BETWEEN VENDOR AND PURCHASER ..................................................... 114
TITLE LV.
WHERE A SLAVE is SOLD FOR THE PURPOSE OF BEING SENT OUT OF THE COUNTRY .................................................... 115
TITLE LVI.
WHERE A SLAVE HAS BEEN SOLD ON CONDITION THAT HE SHOULD NOT BE PROSTITUTED ............................................. 116
TITLE LVII.
WHERE A SLAVE HAS BEEN ALIENATED UNDER THE CONDITION THAT HE WILL OR WILL NOT BE MANUMITTED ........................... 117
TITLE LVIII. CONCERNING J^DILIAN ACTIONS .................................... 119
TITLE LIX.
CONCERNING MONOPOLIES, UNLAWFUL AGREEMENTS OF MERCHANTS, THE ARTIFICERS OR CONTRACTORS, AND THE ILLEGAL AND PROHIBITED PRACTICES OF BATH PROPRIETORS .............................. 120
TITLE LX. CONCERNING FAIRS AND MARKETS .................................. 122
TITLE LXI.
CONCERNING DUTIES ON MERCHANDISE, AND OFFENCES TO WHICH THEY ARE SUBJECT ................................................ 122
TITLE LXII. NEW DUTIES ON MERCHANDISE CANNOT BE ESTABLISHED ............. 124
TITLE LXIII. CONCERNING COMMERCE AND MERCHANTS ........................... 125
TITLE LXIV.
CONCERNING THE EXCHANGE OF PROPERTY AND THE ACTIO PR^ESCRIPTIS VERBIS ...................................................... 127
TITLE LXV. CONCERNING LEASING AND HIRING ................................. 128
TITLE LXVI. CONCERNING THE LAW OF EMPHYTEUSIS ............................ 134
BOOK V.
TITLE I. CONCERNING BETROTHALS, BETROTHAL PLEDGES, AND MARRIAGE BROKERS. 137
TITLE II.
WHERE THE GOVERNOR OF A PROVINCE OR ANY OF His SUBORDINATES GIVE BETROTHAL PLEDGES .......................................... 139
TITLE III.
CONCERNING ANTENUPTIAL DONATIONS, OR THOSE GIVEN ON ACCOUNT OF MARRIAGE AND BETROTHALS ................................... 139
THE TEXT OF THE CODE ........................................... 145
THE TEXT OF THE CODE ........................................... 145
TITLE IV. CONCERNING MARRIAGE ........................................... 146
THE TEXT OF THE CODE ........................................... 151
THE TEXT OF THE CODE ........................................... 153
TITLE V. CONCERNING MARRIAGES WHICH ARE INCESTUOUS AND VOID ........... 155
TITLE VI.
CONCERNING THE PROHIBITION OF MARRIAGE BETWEEN A FEMALE WARD AND HER GUARDIAN OR CURATOR, OR His SON .................... 158
TITLE VII.
WHERE ANYONE CLOTHED WITH POWER, OR ANY OF His SUBORDINATES, ATTEMPTS TO MARRY A FEMALE SUBJECT TO His JURISDICTION ..... 160
TITLE Vill.
CONCERNING MARRIAGE DEMANDED IN ACCORDANCE WITH THE TERMS OF A EESCRIPT .................................................. 160
TITLE IX. CONCERNING SECOND MARRIAGES ................................... 161
THE TEXT OF THE CODE ........................................... 165
THE TEXT OF THE CODE ........................................... 168
THE TEXT OF THE CODE ........................................... 169
TITLE X.
WHERE A WOMAN, TO WHOM HER HUSBAND LEFT AN USUFRUCT, MARRIES A SECOND TIME ......................................... 171
TITLE XI.
CONCERNING THE PROMISE OF A DOWRY, AND ONE MADE WITHOUT CONSIDERATION .................................................. 172
TITLE XII. CONCERNING THE LAW OF DOWRIES ................................. 174
TITLE XIII.
CONCERNING THE CONSIDERATION OF THE ACTION TO RECOVER THE PROPERTY OF THE WIFE AND THAT BASED ON A STIPULATION, AND CONCERNING THE NATURE OF THE PROPERTY GIVEN AS DOWRY ......... 183
THE TEXT OF THE CODE ........................................... 188
TITLE XIV.
CONCERNING AGREEMENTS MADE WITH REFERENCE TO DOWRIES AND ANTE-NUPTIAL DONATIONS, AS WELL AS SUCH AS RELATE TO THE PRIVATE PROPERTY OF THE WIFE ............................... 189
TITLE XV. CONCERNING DOWRY PROVIDED FOR BUT NOT PAID .................... 193
TITLE XVI.
CONCERNING DONATIONS MADE BETWEEN HUSBAND AND WIFE, AND BY PARENTS TO THEIR CHILDREN, AND CONCERNING RATIFICATION ..... 194
TITLE XVII. CONCERNING REPUDIATION AND THE ABOLITION OF THE ACTION DE MORI-
BUS ......................................................... 200
THE TEXT OF THE CODE ........................................... 203
TITLE XVIII.
IN WHAT WAY THE DOWRY CAN BE RECOVERED WHEN THE MARRIAGE HAS BEEN DISSOLVED ......................................... 207
TITLE XIX. WHERE A DOWRY HAS BEEN PAID DURING MARRIAGE ................. 210
' TITLE XX. NEITHER TRUSTEES NOR MANDATORS FOR DOWRIES SHALL BE APPOINTED. 210
TITLE XXI. CONCERNING PROPERTY SURREPTITIOUSLY REMOVED ................... 211
TITLE XXII.
THE ESTATE OF A HUSBAND CANNOT BE GIVEN TO A WOMAN INSTEAD OF HER DOWRY .............................................. 211
TITLE XXIII. CONCERNING DOTAL LANDS ........................................ 212
TITLE XXIV.
WITH WHOM CHILDREN SHOULD RESIDE OR BE BROUGHT UP, WHEN A DIVORCE HAS TAKEN PLACE ................................... 212
TITLE XXV.
CONCERNING THE SUPPORT OF CHILDREN AND RELATIVES IN THE ASCENDING LINE .................................................... 213
TITLE XXVI. CONCERNING CONCUBINES ......................................... 213
TITLE XXVII.
CONCERNING NATURAL CHILDREN AND THEIR MOTHERS, AND FOR WHAT REASONS THEY BECOME LEGITIMATE ........................... 214
TITLE XXVIII. CONCERNING TESTAMENTARY GUARDIANSHIP ......................... 224
TITLE XXIX. CONCERNING THE CONFIRMATION OF A GUARDIAN .................... 226
TITLE XXX. CONCERNING LEGAL GUARDIANSHIPS ................................ 227
TITLE XXXI. CONCERNING THOSE WHO DEMAND GUARDIANS OR CURATORS ........... 228
TITLE XXXII.
WHERE A PETITION MUST BE MADE FOR THE APPOINTMENT OF GUARDIANS OR CURATORS ................................................ 230
TITLE XXXIII.
CONCERNING THE GUARDIANS AND CURATORS OF ILLUSTRIOUS OR DISTINGUISHED PERSONS ............................................ 231
TITLE XXXIV.
WHO CAN APPOINT GUARDIANS AND CURATORS AND WHO CANNOT BE APPOINTED .................................................. 232
TITLE XXXV. WHEN A WOMAN CAN DISCHARGE THE DUTIES OF GUARDIANSHIP ....... 235
TITLE XXXVI.
IN CASES WHERE A MINOR ALREADY HAS A GUARDIAN OR CURATOR, ANOTHER GUARDIAN OR CURATOR CAN BE APPOINTED ............... 236
TITLE XXXVII. PAGE
CONCERNING THE ADMINISTRATION OF GUARDIANS AND CURATORS, AND OF MONEY BELONGING TO THE WARDS WHICH HAS EITHER BEEN LENT AT INTEREST, OR DEPOSITED .............................. 238
TITLE XXXVIII. CONCERNING THE LIABILITIES OF GUARDIANS AND CURATORS ........... 246
TITLE XXXIX.
WHEN MINORS CAN SUE OR BE SUED ON ACCOUNT OF THE ACTS OF THEIR GUARDIANS OR CURATORS ...................................... 248
TITLE XL.
WHERE THERE ARE SEVERAL GUARDIANS OR CURATORS, ALL OR ONE OF THEM CAN SUE OF BE SUED IN THE NAME OF THE MINOR ........ 248
TITLE XLI.
NEITHER A GUARDIAN NOR A CURATOR SHALL ACT AS A COLLECTOR OF TAXES ...................................................... 249
TITLE XLII.
CONCERNING THE GUARDIAN OR CURATOR WHO DOES NOT FURNISH SECURITY .................................................... 249
TITLE XLIII. CONCERNING SUSPECTED GUARDIANS AND CURATORS ................... 251
TITLE XLIV. CONCERNING A GUARDIAN OR CURATOR APPOINTED TO CONDUCT LITIGATION. 252
TITLE XLV.
CONCERNING ONE WHO TRANSACTS BUSINESS IN THE PLACE OF A GUARDIAN ................................................... 254
TITLE XLVI. WHERE A MOTHER PROMISES INDEMNITY ............................ 254
TITLE XLVII. WHERE A GUARDIAN is APPOINTED AGAINST THE WISHES OF THE MOTHER. 255
TITLE XLVIII.
A GUARDIAN SHOULD ASSIST IN THE TRIAL OF A CASE OF His WARD AFTER THE LATTER EEACHES PUBERTY ................................ 255
TITLE XLIX. WHERE MINORS SHOULD BE BROUGHT UP ........................... 255
TITLE L. CONCERNING THE SUPPORT TO BE FURNISHED TO A WARD .............. 256
TITLE LI. THE DECISION OF GUARDIANSHIP ................................... 256
TITLE LII.
CONCERNING THE DIVISION OF GUARDIANSHIP, AND FOR WHAT PORTION OF THE SAME EACH GUARDIAN is LIABLE ....................... 260
TITLE LIII. CONCERNING THE OATH TO BE TAKEN DURING LITIGATION ............ 261
TITLE LIV. CONCERNING THE HEIRS OF GUARDIANS OR CURATORS ................. 262
TITLE LV. WHEN A GUARDIAN OR A CURATOR DOES NOT ACT ................... 263
TITLE LVI. CONCERNING INTEREST BELONGING TO WARDS ........................ 264
TITLE LVII. CONCERNING THE SURETIES OR GUARDIANS AND CURATORS ............. 264
TITLE LVIII. CONCERNING THE COUNTER ACTION OF GUARDIANSHIP ................ 265
TITLE LIX.
CONCERNING THE AUTHORITY WHICH SHOULD BE GRANTED BY A GUARDIAN OR CURATOR ............................................. 266
TITLE LX.
WHEN GUARDIANS OR CURATORS CEASE TO DISCHARGE THE DUTIES OF THEIR OFFICE ............................................... 267
TITLE LXI.
CONCERNING THE APPOINTMENT OF AN AGENT BY A GUARDIAN OR CURATOR .................................................... 268
TITLE LXII.
CONCERNING THE EXCUSES OF GUARDIANS AND CURATORS AND WHEN THEY MAY BE OFFERED ...................................... 268
TITLE LXIII.
WHERE A GUARDIAN OR CURATOR HAS BEEN EXCUSED BY MEANS OF FALSE ALLEGATIONS ................................................ 273
TITLE LXIV. WHERE A GUARDIAN OR CURATOR is ABSENT ON BUSINESS FOR THE STATE . 274
TITLE LXV. CONCERNING THE EXCUSES OF VETERANS ............................ 274
TITLE LXVI.
CONCERNING THOSE WHO ARE EXCUSED ON ACCOUNT OF THE NUMBER OF THEIR CHILDREN ............................................. 275
TITLE LXVII. CONCERNING THOSE WHO ARE EXCUSED ON ACCOUNT OF ILLNESS ....... 275
TITLE LXVIII. WHO CAN BE EXCUSED ON ACCOUNT OF AGE ......................... 275
TITLE LXIX. WHO CAN BE EXCUSED ON ACCOUNT OF THE NUMBER OF GUARDIANSHIPS. 275
TITLE LXX.
CONCERNING THE CURATOR OF AN INSANE PERSON OR A SPENDTHRIFT ... 276 THE TEXT OF THE CODE ........................................... 279
TITLE LXXI.
LANDS AND OTHER PROPERTY BELONGING TO MINORS SHALL NOT BE ALIENATED OR ENCUMBERED WITHOUT A DECREE ................. 281
TITLE LXXII. WHEN THERE is No NEED OF A DECREE ............................. 284
TITLE LXXIII.
WHERE ANYONE, NOT BEING AWARE THAT PROPERTY BELONGS TO A MINOR, PURCHASES IT WITHOUT A DECREE ...................... 285
TITLE LXXIV.
WHERE A MINOR, AFTER ATTAINING His MAJORITY, EATIFIES AN ALIENATION MADE WITHOUT A DECREE ................................ 286
TITLE LXXV.
CONCERNING LEGAL PROCEEDINGS TO BE INSTITUTED AGAINST MAGISTRATES .......................................-••••-•..•••••• 287
BOOK VI.
TITLE I.
CONCERNING FUGITIVE AND MUNICIPAL SLAVES, FREEDMEN, AND ARTISANS ASSIGNED TO DIFFERENT WORKS WHO BELONG TO PRIVATE INDIVIDUALS OR TO THE STATE ........................................ 289
TITLE II. CONCERNING THEFTS AND THE OFFENCE OF CORRUPTING A SLAVE ...... 291
NEW CONSTITUTION OF THE EMPEROR FREDERICK .................... 295
TITLE III. CONCERNING THE SERVICES OF FREEDMEN ........................... 299
TITLE IV.
CONCERNING THE PROPERTY OF FREEDMEN AND THE EIGHTS OF PATRONAGE ......................................................... 302
TITLE V.
WHERE AN ALIENATION HAS BEEN MADE BY FREEDMEN IN ORDER TO DEFRAUD THEIR PATRON ...................................... 303
TITLE VI. CONCERNING THE DEFERENCE TO BE SHOWN TO A PATRON ............. 303
TITLE VII. CONCERNING FREEDMEN AND THEIR CHILDREN ...................... 305
TITLE Vill,
CONCERNING THE RIGHT TO WEAR GOLD RINGS, AND THE RESTITUTION OF BIRTH ................................................... 306
TITLE IX.
WHO CAN BE ADMITTED TO THE PRAETORIAN POSSESSION OF PROPERTY AND WITHIN WHAT TIME THIS SHOULD TAKE PLACE ............ 306
TITLE X.
WHEN THE SHARES OF AN ESTATE TO WHICH THOSE WHO Do NOT DEMAND THEM ARE ENTITLED ACCRUE TO OTHERS, WHO ASK POSSESSION OF THE SAME ........................................ 308
TITLE XI.
CONCERNING THE PRAETORIAN POSSESSION OF PROPERTY IN ACCORDANCE WITH THE PROVISIONS OF THE WILL ........................... 308
TITLE XII.
CONCERNING THE POSSESSION OF AN ESTATE IN OPPOSITION TO THE PROVISIONS OF THE WILL WHICH .THE PRAETOR PROMISES TO CHILDREN .. 309
TITLE XIII.
CONCERNING PRAETORIAN POSSESSION OF THE ESTATE OF A FREEDMAN CONTRARY TO THE PROVISIONS OF THE WILL GRANTED TO His PATRONS OR THEIR CHILDREN .......................................... 309
TITLE XIV. CONCERNING THE PROCEEDING UNDE LIBERI ......................... 310
TITLE XV. CONCERNING THE PROCEEDINGS UNDE LEGITIMI AND UNDE COGNATI .... 310
TITLE XVI. CONCERNING THE EDICT REGULATING THE SUCCESSION ................ 311
TITLE XVII. CONCERNING THE CARBONIAN EDICT ................................ 312
TITLE XVIII. CONCERNING THE SUCCESSION UNDE VIR ET UXOR .................... 312
TITLE XIX.
CONCERNING THE REJECTION OF THE POSSESSION OF THE PROPERTY OF AN ESTATE .................................................. 313
TITLE XX. CONCERNING HOTCHPOT ........................................... 313
TITLE XXI. PAGE CONCERNING THE WILL OF A SOLDIER ............................... 321
TITLE XXII. WHO CAN MAKE A WILL AND WHO CANNOT ........................ 325
TITLE XXIII.
CONCERNING WILLS, AND IN WHAT WAY THEY SHOULD BE DRAWN UP. . 329 THE TEXT OF THE CODE ........................................... 335
TITLE XXIV.
CONCERNING THE APPOINTMENT OF HEIRS, AND WHAT PERSONS CANNOT BE APPOINTED HEIRS ......................................... 342
TITLE XXV.
CONCERNING APPOINTMENTS, SUBSTITUTIONS, AND EESTITUTIONS MADE CONDITIONALLY ............................................... 345
TITLE XXVI. CONCERNING PUPILLARY AND OTHER SUBSTITUTIONS .................. 349
THE ENACTMENTS OF JUSTINIAN.
III. THE CODE.
(Continued.)
THE CODE OF OUR LORD THE EMPEROR JUSTINIAN.
SECOND EDITION.
(Continued.)
BOOK IV.
TITLE I. CONCERNING PROPERTY LOANED AND THE OATH.
1. The Emperor Antoninus to Herculianus.
A case which has been decided by the tender of an oath by either the adversary or the judge, with the consent of the parties, or if the oath has been remitted, cannot be revived under the pretext of perjury, unless a special exception is made by this law.
2. The Emperor Alexander to Felix.
The contempt of the obligation of an oath has a sufficient avenger in God. It has been decided that, where anyone has sworn by the Emperor, and has perjured himself in the moment of excitement, he will not be liable to any corporeal penalty, or for the crime of treason, according to the Constitutions of My Divine ancestors.
Given on the sixth of the Kalends of April, under the Consulate of Maximus, Consul for the second time, and Julianus, 224.
3. The Emperors Diocletian and Maximian, and the Csesars, to Sever a.
In bona fide contracts, as well as in other cases, the decision must be made by the judge after proper investigation, by means of an oath in default of evidence.
Given on the tenth of the Kalends of September, during the Consulate of Maximus, Consul for the second time, and Aquilinus, 226.
4. The Same, and the Consuls, to Maxima.
Even if a ward has tendered an oath to his guardian for the purpose of avoiding the action on guardianship, he is not forbidden to subsequently bring the same action.
Given during the Kalends of July, during the Consulate of the same Emperors; the first, Consul for the fourth time, and the second, Consul for the third time, 290.
6. The Same, and the Csesars, to Bessius.
As you allege that the parties agreed that the question of descent and free birth should be decided by an oath, the Governor of the province, in accordance with the decree of the arbitrator, with reference to your agreement, shall decide in favor of the children of your maternal aunt.
Given on the fifth of the Ides of February, during the Consulate of Tiberian and Dio, 291.
7. The Same, and the Czesars, to Eutychianus.
Neither a son, nor anyone else, can, against the consent of the owner of the property, cause her any prejudice either by bringing suit, entering into an agreement, or tendering an oath. Wherefore, if your son has transacted any business with reference to your property, and you have not ratified what he has done, this will be of no disadvantage to you.
Given on the Ides of November, during the Consulate of the abovementioned Emperors, 293.
8. The Same, and the Ctesars, to Alexander.
Whether the oath has been tendered to or by the plaintiff, or has been remitted, an action in factum will lie in his favor; as is the case with one for the execution of a judgment.
Given on the twelfth of the Kalends of May, during the Consulate of the Caasars, 294.
9. The Same, and the Csesars, to Martian.
If the plaintiff has tendered the oath, and there is no evidence that he has done this for the purpose of annoyance, the defendant will be required by the court either to make payment, to be sworn, or to have recourse to the oath of the plaintiff.
Given on the fifth of the Kalends of May, during the above-mentioned Consulate, 299.
10. The Same, and the Csesars, to Protogenes.
In an action of deposit which has been brought with reference to property delivered without any written instrument, the oath can be tendered just as in other bona fide proceedings.
Given on the fifth of the Kalends of December, during the Consulate of the Csesars, 300.
11. The Emperor Justinian to Demosthenes, Prsetorian Prefect.
If anyone should tender the oath, and, before it was taken, should recall it (as, for instance, where he has obtained other evidence), We order that he shall not, under any circumstances, be permitted to have recourse to it a second time; for it is perfectly absurd for him to do so, .when he thought that he could reject it, and then again have recourse to it when he found that his other evidence was worthless; and the judges shall not hear persons who attempt to commit such injustice.
If, however, anyone should tender the oath, and then wish to revoke it, he should be permitted to do so, and to produce other evidence if he so desires; provided, however, that this permission shall only be granted him until the case is decided. After final judgment has been rendered, from which no appeal has been taken, or where it has been confirmed after an appeal, We do not permit the oath to be recalled, and evidence to be introduced by anyone, lest the case having been begun again, after its termination another action may arise.
Given at Chalcedon, on the fifteenth of the Kalends of October, during the Consulate of Decius, 529.
12. The Same to Demosthenes, Prsetorian Prefect.
Generally speaking, everything relating to oaths tendered in litigation either by the judge or by the parties must be definitely settled; for it has already frequently happened that judges impose the oath by rendering a decision, and, as an appeal was not taken, because those who were ordered to be sworn died before this could be done, the evidence in the case was lost; for there is a great deal of difference between the oath of an heir and that of the person from whom he derived his right. Hence, compelled by necessity, and desiring to bring all possible aid to the production of evidence, We issue the following decree. Every oath tendered by either the judges or the parties, in the beginning of the suit, while it is being tried, or at the time when judgment is rendered, shall be taken in the presence of the same judge, without waiting for his final decision, or without apprehension of an appeal.
(1) Where the oath has been tendered by the parties, and approved by the judge, or has been tendered to either party by the judge himself, and he to whom it was tendered for some reason or other hesitates, or whether the party who tenders it does so, he to whom it is tendered shall be compelled to take it. If, however, he should refuse, the oath shall be considered as having been taken, and the case shall be decided without leaving any ground for appeal. For who will tolerate that anyone should have the benefit of an appeal from a decision which he himself was instrumental in having rendered?
(2) If, however, he to whom the oath was tendered either by his adversary, or by the judge, absolutely declines to take it, he shall have the right to refuse. But the judge, if he thinks that the oath ought, by all means, to be taken, can decide the case just as if the party who refused to be sworn had desired that he should do so; and he can examine the other points of the case or all of it, and it shall take its course without being interrupted by any obstacle. He, however, who was not willing to take the oath which was tendered him,-whether he states his reasons for this, or whether he is not heard, shall be entitled to the benefit of an appeal; and if the judge who presides when the appeal was argued should decide that the oath was properly tendered, and was not lawfully refused, the case shall remain unaltered. If, however, he should hold that the oath was not legally tendered, but was properly refused, he will then be permitted
to correct the opinion of the judge which was based, as it were, upon the oath being declined; and the party will in no way be prejudiced, or incur any unjust expense, and the course of the case from beginning to end shall not be interfered with, and shall be impartially weighed in the scales of justice.
(3) Whether the oath has been tendered or refused, the party who tendered it shall not be allowed the benefit of an appeal; as it would be too unjust that he who tendered the oath should be entitled to appeal merely for the reason that the judge granted his request.
(4) We prescribe these rules in this law for persons who are present, but those who are absent should not be neglected; hence, if the party to whom the oath was tendered is not present, the case should be conducted by an attorney, and it is necessary that the principal party should be granted a certain time to appear in court, in order that he may carry out what has been decided with reference to the oath; or if the judge should think it best, this can be done in the province where the aforesaid party lives, under the evidence of the plaintiff that the oath has either been tendered by him, or to him, or has been refused, so that the case may be definitely decided, no matter what course has been pursued.
Permission should also be given to the adverse party, either in his own proper person, or by his attorney, to be present when the formalities to be observed by the litigant to be sworn are complied with; or if he should prefer to do neither, and, on the other hand, it is established by documentary evidence that the oath was taken, tendered, or refused, it is the duty of the judge to determine by whom the expenses of a proceeding of this kind should be paid, whether by both parties or only by one of them. No obstacle should arise for the decision of cases in a proceeding of this kind, but the other points or questions of the case must be examined by the judge, and after the documents concerning the oath have been placed in his hands, he must return to this subject, and, having disposed of it, pass to other matters. All other regulations, which have herein been established with regard to parties who are present, must also be observed in the case of those who are absent.
(5) We decree that in every instance in which the oath is taken, the judicial rules having reference to the rank of a person must be obeyed, and the oath shall be taken either before the judge himself, or in the house of the party who is sworn, or upon the Holy Scriptures, or in the Churches.
(6) In like manner, We direct that the rules relating to the oath of calumny, or of the re-tender of the oath which have been provided by the laws introduced either by Ourselves or Our predecessors, shall remain in full force; for these have been promulgated, not with view to abrogating the ancient laws in any way, but that whatever may seem to be lacking to them may be supplied.
Given on the third of the Kalends of November, during the Consulate of Decius.
13. The Same to John, Prsetorian Prefect.
Where anyone demands a legacy or a trust as having been left to him, and this does not appear by the will, the oath should be tendered to him by the heir, and he should swear that the legacy or trust has been bequeathed to him; and if he should obtain what he demanded under the will, and it should afterwards become clear that nothing was left him, the question was raised by the ancient authorities whether what was established by the oath should stand, or whether the party should restore what he had received; or whether if, in fact, the legacy or the trust had been left to him, We should give the heir permission to deduct the Falcidian portion, where there was ground for doing so.
The better opinion seems to Us to be that, in the first place, the legacy or the trust ought to be recovered from him, and that he should obtain no benefit from this act of perjury. Ifr however, what he swore to was found to be true, the Falcidian fourth could be reserved if there was good reason for it, in order that no one might by Our laws be afforded an opportunity to obtain an infamous profit as the result of his own crime.
Given at Constantinople, on the fifteenth of the Kalends of November, after the Consulate of Lampadius and Orestes, 532.
TITLE II.
WHERE A CERTAIN THING is DEMANDED.
1. The Emperors Severus and Antoninus to Modestinus.
You do not ask what is just or customary when you request that you and your brother, who is your co-heir, shall be permitted to pay the debts of your father, not in proportion to your shares of the estate, but in accordance with the appraisement of the property left as preferred legacies; for it is a well-settled rule of law that the charges of an estate must be borne by the testamentary heirs in proportion to their hereditary shares, and not with reference to the benefit received. You, yourself, do not appear to be ignorant of this, as. you have paid the creditors in proportion to your share of the estate in accordance with the rule of ancient law.
Given on the Kalends of July, during the Consulate of Chilo and Libo, 205.
2. The Emperor Antoninus to Hermogenes.
Although Asclepiades lent your money in his own name, having stipulated, however, that it should be paid to himself, you can by an action of mandate compel him to assign to you the right of action to enable you to recover it.
Given on the seventh of the Kalends of May, during the Consulate of Messala and Sabinus, 215.
3. The Emperor Gordian to Sempronius.
It has frequently been stated in rescripts that those who hold office in provinces cannot either themselves, or through persons substituted by them, lend money at interest during their terms of office.
Given on the eighth of the Kalends of September, during the Consulate of Gordian and Aviola, 240.
4. The Emperor Philip and the Caesar Philip, to Maximus.
If you have lent the money of anyone who is absent at interest, in his own name, and he disapproves of the transaction, you can bring the action of mandate, and the Governor of the province, upon your application, will give you his assistance. Likewise, if he should perceive that the mandate has ceased to have effect, he will not, on this account, refuse you an equitable action against the debtor.
Given on the fifteenth of the Kalends of March, during the Consulate of Prassens and Albinus, 247.
5. The Emperors Diocletian and Maximian, and the Csesars, to Aristodemus and Proculus.
If you did not accept the entire amount of the loan, or did not voluntarily bind yourself to your creditor by a stipulation, or you assumed the obligation by appearing as surety for the principal debtor, although the money may have been paid only to one person, you will have no reason to fear that the creditor can sue you for money which he lent to another, if you prove that it has not been counted out to you within the time prescribed by law. And you will have still less cause for apprehension, if, instead of money, the transaction had reference to the delivery of oil, where there was no stipulation that it should be returned; and when a controversy arises on this point, he who has actually received the money will be liable; but it is clear that, in accordance with the terms of the instrument which refers to the delivery of the oil, nothing is due.
Given on the fifth of the Nones of May, during the above-mentioned Consulate, 293.
6. The Same, and the Csesars, to Nicander.
If a novation should be made with reference to a sum of money due for a certain amount of merchandise, and you stipulate that interest shall be paid by the person against whom you file your petition, even though the statement of the amount of the merchandise due may be false, still, as the substance of the obligation is not wanting, there is no reason why interest should not be claimed in compliance with the terms of the contract. If, however, it had been agreed without a stipulation that only the money which was borrowed should be paid with interest, the false instruments would be considered as not having been drawn up; for an agreement of this kind cannot alter the preceding obligation.
Given on the fifteenth of the Kalends of December, under the abovementioned Consulate, 293.
7. The Same, and the Csesars, to Pactumeia.
The origin of money which is loaned should not be considered, but only whether the person who made the contract counted it out to the one to whom it belonged, is required in obligations of this kind.
Given on the fifth of the Nones of October, under the above-mentioned Consulate, 293.
8. The Same, and the Csesars, to Proculus.
If, instead of the loan of money which you requested from your creditor, you received silver, beasts of burden, or any other kind of property appraised by mutual consent, and you gave him gold in pledge, although you may have promised by a stipulation to pay him interest above one per cent a month, still, only the principal which is mentioned in the agreement of the parties, and the legal rate of interest can be claimed. You cannot, however, obtain any benefit on the ground that the pledge which you gave is of inferior value, as you allege, in order to avoid payment of the full amount which you received.
9. The Same, and the Caesars, to Alexander.
As you state in your petition that, while in Gaul, you, together with Syntrophus, lent a certain weight of gold and a certain sum of money to someone to be paid at Rome, if you apply to a competent judge and he decides that there are two principal debtors under a stipulation, or that you are entitled to the action for the full amount, or that you can collect from the heirs of Syntrophus, he shall order the entire debt, or, on the other hand, what you alone have paid, to be refunded to you.
Given on the fifteenth of the Kalends of January, during the abovementioned Consulate, 293.
10. The Same, and the Csesars, to Crispinus.
Payment should not be opposed because the evidence of the indebtedness of several persons is contained in one and the same instrument; for if you have stipulated, and the other parties have agreed that, instead of the money which you have loaned, wine shall be given you, the change of mind of the others cannot annul the contract which has been legally made.
Given on the second of the Nones of February, during the abovementioned Consulate, 293.
11. The Same, and the Csesars, to Maximian.
A fire does not release a debtor from the payment of his obligation. Given on the second of the Ides of February, under the abovementioned Consulate, 293.
12. The Same, and the Csesars, to Theophanius.
If, together with lo, you have borrowed money in connection with' your common business, you will not be liable for the entire amount
of the debt, either on account of the property, or by reason of the formula used in the contract; and even though afterwards you may have paid the entire amount, you will have a right of action against lo for the recovery of your share of the debt before a competent judge. Given on the fifteenth of the Kalends of September, during the Consulate of the Caesars, 300.
13. The Same, and the Cassars, to Pronto.
He who has borrowed a sum of money will be liable to his creditor, even though it is to be used for the business of another, if the creditor, at the time when he lent it, did not have in view the person for the benefit of whose affairs it was obtained.
Given at Nicomedia, on the seventeenth of the Kalends of November, during the Consulate of the Caesars, 300.
14. The Same, and the Cassars, to Hadrian.
A creditor who lent money to others did not render you liable, unless you signed a written contract evidencing the loan.
Given during the Consulate of the above-mentioned Emperors, without any date.
15. The Same, and the Cassars, to Charidemus.
You ask for something which is plainly contrary to law, when you demand that creditors shall not proceed against you who borrowed the money, but against the heirs of the person to whom you lent it.
Given on the fifth of the Kalends of December, under the Consulate of the Caesars.
16. The Emperors Honorius and Theodosius to Theodore, Praetorian Prefect.
Anyone who lends money at interest to a judge shall, if he resides in his jurisdiction, be considered as the purchaser of the laws of the province; or, if anyone should corruptly pay someone who is his fellow-candidate for an office, he shall, along with the judge, be condemned to the penalty of exile.
Given on the seventeenth of the Kalends of November, during the Consulate of Bassus and Philip, 408.
17. The Emperor Justinian to Menna, Praetorian Prefect.
We have considered that the following provisions with reference to written instruments should be enacted for the common welfare; namely, that when anyone desires to borrow more than fifty pounds of gold, or to receive security for a debt, and the sum exceeds that above-mentioned, he is hereby notified that the instrument evidencing the debt shall not be recognized either by the debtor or the creditor, unless the said instrument contains the signature of three witnesses of established reputation. For if any written instrument executed in violation of this rule and calling for the payment of a sum in gold exceeding that above-mentioned is introduced, it shall, under no circumstances, be admitted by the judge.
This rule shall be applicable to future loans and payments of debts. Given at Constantinople, on the tenth of the Kalends of June, during the second Consulate of Our Lord Justinian, 528.
Extract from Novel 73, Chapter I. Latin Text.
By a new law, however, five witnesses are necessary, if the contract is in writing, and was made by a person who was illiterate, and who resided in the city, if the debt was for more than a pound of gold. When anyone desires to make a verbal contract, it is evident that he can do so either by making use of witnesses, or by taking the oath; and in case an action should be brought, the plaintiff must produce the witnesses, and can either be compelled to take the oath himself or to tender it, as the judge may determine.
The laws relating to contracts made in the country, which have been, up to this time, valid, are hereby confirmed.
TITLE III.
CONCERNING SUFFRAGE.
1. The Emperors Theodosius, Arcadius, and Honorius to Rufinus, Prastorian Prefect.
If persons desiring to obtain what they seek have requested anyone to vote for them, and have bound themselves to give him something in return, they must keep their promises, and carry out what they voluntarily agreed to do. If they should, under any pretext, delay to do so, they shall be compelled to pay what is due.
(1) If any gold, silver, or other movable property should be given on this account, delivery alone will be sufficient, and the contract shall remain forever valid; for when the delivery of movable property is made, it is done with good faith, and for a consideration.
(2) If the contract includes the delivery of a rustic or urban estate, an instrument in writing should be drawn up showing that the property has been transferred to another, actual delivery should follow, and the instrument show that the transaction was complete; for otherwise the property cannot pass to the new owner, or the old one be divested of his title.
(3) If the person who has been asked to give his vote should seize the property agreed upon as compensation, his rashness and violence shall be restrained, and possession of the property shall be restored to its former owner, and he who did not hesitate to seize what he ought to have demanded shall be excluded from obtaining it by law.
Given at Constantinople, on the third of the Nones of March, dur-, ing the Consulate of Arcadius, Consul for the third time, and Honorius, Consul for the second time, 394.
TITLE IV. CONCERNING THE PROHIBITED SEQUESTRATION OF MONEY.
1. The Emperors Honorius and Theodosius to John, Praetorian Prefect.
Whenever money is demanded by virtue of some contract, necessity for its sequestration does not exist; for it is necessary for the existence of the debt to be first proved, and then the debtor be compelled to make payment. It is required, not so much by the rule of law as by equity itself, that the creditor should produce the evidence of the debt, and, bringing suit for the money, establish the liability of the debtor.
Given at Ravenna, on the sixth of the Ides of July, during the Consulate of Honorius, Consul for the thirteenth time, and Theodosius, Consul for the tenth time, 422.
TITLE V.
CONCERNING THE RECOVERY OF A DEBT WHICH WAS PAID WITHOUT BEING DUE.
1. The Emperor Antoninus to Mutianus.
There is no doubt that money which has been paid through mistake, and not by virtue of a judgment, can legally be recovered by a personal action. Therefore if you can prove that your father, whose heir you became, paid his creditor more than he owed him, you can recover the amount of the excess. You will, however, in vain demand the interest on this sum, as by the personal action only that amount can be recovered which was paid when it was not due.
Given on the third of the Kalends of August, during the Consulate of Antoninus, Consul for the fourth time, and Balbinus, 223.
2. The Same to Secundina.
Where, without any arrangement having been made with reference to it, you have been delegated to promise the creditor of another money which you do not owe, you will have the right to bring a personal action against the person who delegated you.
Given on the fourteenth of the Kalends of January, during the Consulate of Antoninus, Consul for the fourth time, and Balbinus, 293.
3. The Emperors Diocletian and Maximian, and the Csesars, to Pamphilus.
As a sum of money which was not due, and which has been paid through ignorance can be recovered, an action on a written contract will be much more available for the recovery of money not owing, or an exception on the ground of bad faith can be pleaded against the plaintiff.
Given on the third of the Nones of April, at Byzantium, during the above-mentioned Consulate, 293.
4. The Same, and the Cassars, to Heraclius.
It is a positive rule of law that sums of money which are liable to increase through denial in litigation cannot be recovered, even if, when not due, they have been paid by someone ignorant of the fact. It is, however, established that there will not be ground for a personal action for recovery, if a bond for the payment of money not due has been given.
Given at Byzantium, on the fifth of the Ides of April, during the above-mentioned Consulate, 293.
5. The Same, and the Csssars, to Attains.
If, having been emancipated by your father, you did not succeed him within the time prescribed by praetorian law, it is certain that you, as the heir of your father, will have a right to recover by a personal action anything which you may have subsequently paid by mistake.
Given on the fourth of the Kalends of May, during the Consulate of the above-mentioned Emperors, 293.
6. The Same, and the Csesars, to Mnasea.
When, through ignorance of fact, you have paid for another a sum of money which was not due, and this has been proved before the Governor of the province, he shall, on the demand of him who paid it, provide for its return to the person on account of whom it was advanced.
Given on the sixth of the Ides of August, during the above-mentioned Consulate, 293.
7. The Same, and the Csesars, to Dionysia.
It is an established rule of law that a trust or a legacy which, through an error of fact, was delivered when it was not due, can be recovered.
Given on the fifth of the Ides of September, during the abovementioned Consulate, 293.
8. The Same, and the C&sars, to Zyparus.
Where anyone has paid a false agent of his creditor, he has a right of recovery against the latter, but not to a release from his obligation.
Given on the fifteenth of the Kalends of November, during the above-mentioned Consulate, 293.
9. The Same, and the Csesars, to Gratiana.
Anyone who knows that payment has been made of a sum which was not due cannot legally recover it. Where, however, property belonging to another has been sold without a mandate, and after it has been evicted either for this reason or for some other defect in the title, the owner indemnifies the purchaser, he cannot allege that the money was not due; as having proved by an act of this kind that he ratified the contract, he shows that what he paid was due.
Given at Nicomedia, on the fourth of the Nones of December, during the Consulate of the Csesars, 294.
10. The Emperor Justinian to Julian, Prtetorian Prefect.
Where anyone promises a slave, who is designated, or a certain sum of solidi, or any other property, and, by delivering either of these, he has the right to be released from his obligation, if he, through ignorance, should deliver both, a doubt arose which could be recovered by the laws, that is to say, whether he could recover the slave or the money, and whether the stipulator or the promisor had the power to make the selection of the property.
Ulpian grants the choice to the person who received both, to return whichever he wishes, and states that both Marcellus and Celsus agree with him. Papinianus, however, gives the right of selection to him who delivered both pieces of property, because, before delivering them, he had the right to deliver whichever he chose; and he quotes the great authority of Salvius Julianus, the interpreter of the Praetorian Edict, in support of his opinion. In deciding the question, We have adopted the view of Julianus and Papinianus that he who had the right to give either of the pieces of property was also entitled to choose which he should receive.
Given at Constantinople, on the Kalends of August, under the fifth Consulate of Lampadius and Orestes, 530.
11. The Same to Julian, Prtetorian Prefect.
A dispute arose among jurists with reference to the hesitation of those who have paid money while uncertain whether or not it was due, and whether they could recover that which they had paid while in doubt. In deciding this question, We decree that all those who have paid while uncertain whether or not they owed the money, or anything else which they gave, should not be denied the right of recovery, and that the presumption of a compromise should not be alleged against them, unless this was specifically established by the adverse party.
Given at Constantinople, on the Kalends of October, under the fifth Consulate of Lampadius and Orestes, 530.
TITLE VI.
CONCERNING THE ACTION FOR RECOVERY OF PROPERTY GIVEN FOR SOME CONSIDERATION.
1. The Emperor Antoninus to Callisthenides.
You state that a sum of money was received by you by way of dowry, under an agreement (as is customary when a marriage contract is entered into) ; and if some obstacle has arisen to prevent the marriage from being celebrated according to law, you can recover the said sum by a personal action, and the agreement which was made should be considered as if it had never been entered into.
Given on the sixth of the Kalends of August, during the Consulate of Lsetus, Consul for the second time, and Cerealis, 216.
2. The Emperor Alexander to Asclepiades.
If, as you state, your father gave your sister certain lands and other property which you have mentioned, under the condition that she should satisfy the creditors, and that, if the condition was not fulfilled, the donation should be void, and as she did not comply with the condition, it is not unjust that the action for recovery of the property donated should be granted you as the heir of your father.
Given on the fourteenth of the Kalends of December, during the Consulate of Albinus and Maximus, 228.
3. The Emperors Valerian and Gallienus to Aurelius and Alexandra.
A donation was made to you under the condition that neither of you should have the power to dispose of his or her share of the estate, and the result of this is, that neither of you can alienate the ownership of your share; and if the condition should not be observed, the donor, or his heir, will be entitled to an action to recover the property.
Given on the Kalends of April, during the Consulate of Valerian, Consul for the fourth time, and Gallienus, Consul for the third time, 258.
4. The So/me, and the Caesar Valerian, to ^Emilia.
If, having actually received a very small sum of money, you acknowledge the receipt of a much larger one, for the reason that your adversary promised you his influence, and as you allege that he did not keep his word, you can, by means of a personal action, be released from the obligation which you contracted, on the ground that you did not receive the expected influence in consideration of which you entered into the agreement.
Given on the Kalends of May, under the Consulate of ^milianus and Bassus, 260.
5. The Emperors Diocletian and Maximian, and the Ciesars, to Martial.
If you appointed a soldier your attorney for the transaction of your business, when this was forbidden by law, and on account of his appointment you paid him a sum of money, a competent judge will see that whatever you have disbursed on this account shall be refunded to you, without the case having been heard.
Given on the tenth of the Kalends of October, during the Consulate of the same Emperors; the first, Consul for the fourth time, and the second, Consul for the third time, 290.
6. The Same, and the Csesars, to Cyrio and Plotio.
You say that your father presented a female slave to the person against whom you have instituted proceedings, and it makes a great
deal of difference whether he made the donation with the intention of giving or of manumitting the girl whom he believed to be a female slave; for when a gift has been perfected it cannot be revoked, and where the intention to do so did not exist, an action for recovery will lie.
Given on the second of the Ides of May, during the above-mentioned Consulate, 293.
7. The Same, and the Csesars, to Gerontius.
If you have given anything to the wife of a person whom you intended by this act of liberality to induce to travel with you, and you did not add any condition of recovery, the gift will remain unimpaired; as it is contrary to law for a perfect donation to be revoked by the indecision of the donor.
Given on the seventh of the Kalends of September, during the Consulate of the above-mentioned Emperors, 293.
8. The Same, and the Csesars, to Flavian.
A rule of law provides that there is ground for a personal action for recovery, when the condition attached to a donation not being impossible, it was not complied with by him who agreed to it; therefore when you gave your property to your betrothed as a token of your liberality, and imposed a certain condition, and she did not comply with it, although she could have done so, you will not be prevented from suing her heirs to recover what you gave her, if you should so desire.
Given on the third of the Ides of February, during the abovementioned Consulate, 293.
9. The Same, and the Csesars, to Eibulus.
If you, being free, have given something in order that your daughters may be manumitted, and proceedings are not instituted for this purpose, you will be entitled to an action for the recovery of what you gave.
If, however, a slave should donate something out of his peculium, to his master, he can have no right of action against him; but if he should appear before the Governor of the province, the latter will, taking into consideration the respect due to the master, exhort him who permitted himself to receive the money in consideration of granting freedom to the slave to abide by his agreement in favor of liberty.
Given on the third of the Ides of February, during the Consulate of the above-mentioned Emperors, 299.
10. The Same, and the Csesars, to Canoniana.
It is certain that you can, by no means, recover money which has been paid by you, if the condition on which it was dependent failed to take place, not through the fault of the person who received it, but because of some accident.
Given at Nicomedia, on the third of the Nones of December, during the Consulate of the Csesars, 300.
11. The Same, and the Caesars, to Stratonica.
It has been established that money paid to an advocate for his services should be refunded, if it is proved that he was to blame for not complying with his contract.
Given on the seventeenth of the Kalends of January, during the Consulate of the Csesars, 300.
TITLE VII.
CONCERNING THE ACTION FOR RECOVERY ON ACCOUNT OF A DISHONORABLE CONSIDERATION.
1. The Emperors Antoninus to Ingemms.
If suit is brought against you on your bond, and you have received no money, and your bond was furnished for an infamous consideration, and one which is prohibited, and this is proved in the presence of the judge having jurisdiction of the case, when this has been accomplished, you will be released from liability.
2. The Same to Longinus.
As you allege that you have transferred your house to your adversary for a dishonorable consideration, and one contrary to the principles of My reign, you will in vain ask that it be restored to you, for in a case of this kind the condition of the possessor is considered to be the better.
Given on the fifteenth of the Kalends of December, during the Consulate of Lsetus, Consul for the second time, and Cerealis, 216.
3. The Emperors Diocletian and Maximian to the Soldier Dizon.
If it is established by indisputable evidence before a competent judge that you have paid a sum of money to the person of whom you complain, in order to avoid military service, you can recover it with his assistance; and he, being mindful of public censure, after the money has been refunded, will not suffer the crime of extortion to remain unpunished.
Given on the third of the Kalends of August, during the Consulate of the above-mentioned Emperors; the first, Consul for the fourth time, and the second, Consul for the third time, 290.
4. The Same, and the Ceesars, to Rufinus.
Where a dishonorable consideration is found to have been offered by both parties, although the contract may have been complied with, an action for recovery will be granted only for what was paid, and not for the interest on the same.
Given on the seventh of the Ides of January, during the above mentioned Consulate, 293.
5. The Same, and the Csesars, to Bichoporus.
Since you acknowledge that your wife led the life of a prostitute, you understand that your petition contains the confession that you
have acted as a pander, and therefore no ground will exist for the recovery of a sum of money paid for such an infamous consideration. For although baseness may have existed on both sides, and the money paid cannot be recovered, still, it is established by the authority of the law that actions based upon a stipulation entered into contrary to good morals should be refused.
Given on the Ides of May, during the Consulate of the Caesars, 294.
6. The Same, and the Csesars, to Eutychia.
It is settled that where money has been received by anyone to induce him to restore property which he had stolen, as he only is guilty of dishonorable conduct, he can be compelled to refund it by a personal action.
Given on the fifteenth of the Kalends of June, during the Consulate of the Caesars, 294.
7. The Same, and the Csesars, to Zeno.
It has been decided that he who receives money to induce him to restore cattle which he had driven away must not only refund the money which he acquired by his act, but also the cattle, even though they are said to have died, or to have perished by some accident, as in this case he will be found to be in default.
Given at Nicomedia, on the fifth of the Kalends of December, during the above-mentioned Consulate, 299.
TITLE Vill.
CONCERNING THE ACTION FOR THE RECOVERY OP STOLEN PROPERTY.
1. The Emperors Diocletian and Maximian, and the Csesars, to Hermogenes.
The Governor of the province, being aware of the facts, shall be careful to declare in his decision that each party is liable for the entire amount in an action of theft; but where the action for the recovery of stolen money has been brought, and the judgment has been satisfied by one of the parties, the others are released.
Given on the Kalends of May, under the Consulate of the Caesars, 294.
2. The Same, and the Csesars, to Aristenetus.
It is a well-established rule of law that a sheep thief shall bear the loss of stolen property, if this occurs before his offer to make restitution.
Given on the Kalends of May, under the Consulate of the Caesars, 294.
TITLE IX.
CONCERNING THE PERSONAL SUIT FOR RECOVERY UNDER
THE LAW, WHERE THERE is No CONSIDERATION, OR
WHERE THE CONSIDERATION is UNJUST.
1. The Emperors Diocletian and Maximian, to Ulpiiis.
Although debts cannot be collected before they are due, still, if you are a debtor to the Treasury on account of your administration as the captain of the first company of the triarii, and the Governor of the province finds that your property is exhausted to such an extent that payment of the debt can only be made by the employment of a single sum of money which is due to you, he shall notify your debtor, provided he is solvent, to discharge the debt before the time fixed for doing so, in order that what is due may be paid to the Treasury which, on account of the public requirements, should obtain the preference.
Given on the thirteenth of the Kalends of August, during the Consulate of the Caesars, 294.
2. The Same, and the Csesars, to Sculatius.
No doubt exists as to the law which provides that where the instrument which established the payment of the debt is retained by the creditor, it will be of no advantage to him while it remains in his hands, and therefore it can be recovered by a personal action.
Given on the third of the Nones of April, during the Consulate of the Csesars, 300.
3. The Same, and the Cse.sars, to Galatia.
A possessor in bad faith, who has been defeated in an action where the ownership of property is involved, can be compelled to surrender any existing crops belonging to the property by an action for their recovery, and can be sued in a personal action for those which have been consumed.
Given on the Ides of February, during the Consulate of the Caesars, 300.
4. The Same, and the Caesars, to Alexander.
If the sum which you stated in writing you received as a loan has never been counted out to you, and the time prescribed by law within which you can bring suit has not yet transpired, you can ask the Governor that notice be served for the return of the obligation.
Given on the seventeenth of the Kalends of January, during the Consulate of the Caesars, 300.
TITLE X. CONCERNING OBLIGATIONS AND ACTIONS.
1. The Emperor Gordian to Valeria.
You state that a certain sum of money has been given by you to a person whom you mention, and in return for which he has assigned
you a right of action against the debtor, for whom you paid the money; and, before you brought suit on this account, you allege that the creditor died without leaving an heir. Since this is the case, a praetorian action will lie in your favor.
Given on the fifth of the Kalends of May, during the Consulate of Atticus and Prsetextatus, 243.
2. The Emperors Valerian and Gallienus to Celsus.
It has been frequently stated in rescripts that where claims have been given by way of dowry, although no delegation was previously made, nor any proceedings were subsequently instituted, a praetorian action should be granted the husband, just as in the case of someone who had purchased a note.
Given on the fourteenth of the Kalends of February, during the Consulate of Secularus and Donatus, 255.
3. The Emperors Diocletian and Maximian, and the Csesars, to Rusticianus.
It is extremely inequitable for tenants to be sued on account of the private indebtedness of their lessor, where they pay the rent in accordance with their contracts.
Given on the day before the Kalends of January, during the Consulate of Maximus, Consul for the second time, and Aquilinus, 286.
4. The Same, and the Csesars, to Licinia.
It is no more than just for good faith to be taken into consideration in all contracts.
Given on the third of the Nones of October, during the Consulate of the above-mentioned Emperors, 287.
5. The Same, and the Csesars, to Camerinus and Martian.
As in the beginning everyone has free power to make or not to make contracts, so where an obligation has once been entered into neither party can, without the consent of his adversary, reject it. Wherefore you should understand that when you have once been bound by a voluntary agreement, you can, under no circumstances, repudiate it, without the consent of the other party whom you mention in your petition.
Given at Byzantium, on the Nones of April, under the above-mentioned Consulate, 290.
6. The Same, and the Csesars, to Mauritius.
If your debtor has given you in payment a claim which was due to him, and appointed you his attorney in the matter, demand the pledges which were specially or generally deposited to secure the debt. If, however, they are proved to have been sold by those to whom they were previously pledged, because of their having the preference, understand that you cannot demand them of the purchasers.
Given on the ninth of the Kalends of July, during the Consulate of the above-mentioned Emperors, 293.
7. The Same, and the Csesars, to Dionysius.
If you have purchased a claim from a creditor, demand the pledges which the vendor could have obtained in the presence of the Governor of the province. For if you hold the property which was pledged for the debt of the said person and it is not paid, you are not forbidden by the Common Law to sell the pledges. When, however, those who possessed the pledges having a preferred lien upon them have purchased them from the creditors, or if they are protected by prescription based upon long time, understand that you will not have the power to sell the pledges.
Given on the third of the Kalends of January, during the abovementioned Consulate, 293.
8. The Same, and the Csesars, to Grescentius.
Where, for the purpose of making a donation to a person whom you state that you have loved with the affection of a father, you gave him a sum of money, and he, for the purpose of remunerating your liberality, asks you to accept another sum from his attorney, and before you receive it, he dies, you cannot recover what you have given, for the reason that the donation was perfected, nor can you demand from his attorney what his constituent directed to be given to you but was not yet delivered. If, however, you have lent the amount, but did not stipulate that it should be paid by someone who had been delegated on account of a novation, his heirs will be compelled to pay you.
Given on the thirteenth of the Kalends of February, during the Consulate of the Csesars, 294.
9. The Same, and the Caesars, to Glyco.
Debtors who deny that they owe anything should not be intimidated by armed force, but should be discharged from liability if the plaintiff does not prove his case, or if he should be barred by an exception; but if their indebtedness should be established, and judgment be rendered against them, it is settled that they must be compelled to make payment by the employment of all legal remedies.
Given on the Ides of February, during the Consulate of the Caesars, 294.
10. The Same, and the Csesars, to Fufinus.
The right of personal action against a debtor is not extinguished by the sale of the pledges, but what can be obtained by it shall be credited on the debt, and suit can be brought for the remainder.
Given on the third of the Nones of April, during the Consulate of the Caesars, 294.
11. The Same, and the Csesars, to Paula.
You deceived yourself when you thought you could collect from the owner of the land what you lent to his tenants on their own account, for the presence of his agents does not enable you to hold him liable.
Given on the eighth of the Kalends of August, during the Consulate of the Caesars, 294.
12. The Same, and the Csesars, to Jovinus.
The laws do not suffer children to be given up to the service of creditors because of debts due by their parents.
Given on the thirteenth of the Kalends of November, during the Consulate of the Csesars, 294.
Extract from Novel 134, Chapter VII. Latin Text.
Moreover, the creditor will lose his debt, and will be compelled to pay an equal amount to the child whom he has retained, or to his parents, and he will also be liable to corporeal penalties.
13. The Same, and the Csesars, to Barsumius.
You should compel the person to whom you have lent money to make payment by means of an adequate legal proceeding, for you have no right of action against traders who you alleged exhausted the funds of your debtor by the sale of merchandise to him.
Given on the eleventh of the Kalends of April, during the Consulate of the Caesars, 300.
14. The Same, and the Csesars, to Hermodorus and Nicoma-chus.
You have the choice either to sue the heirs of your debtor by a personal action, or to make use of the Servian Action against him who holds the pledges which were given to you, and which have been sold and delivered to him by the heirs, if he is not protected by prescription based upon long time; or you can bring both actions simultaneously.
Given at Nicomedia, on the fifth of the Kalends of December, during the Consulate of the Csesars, 300.
Extract from, Novel 4, Chapter HI. Latin Text.
At present, however, under the new law, all trustees, mandators, and sureties must first be sued before having recourse to those in possession of the pledges.
TITLE XL
ACTIONS SHOULD BE BROUGHT BY HEIRS AND AGAINST HEIRS.
1. The Emperor Justinian to John, Prsetorian Prefect.
In former times, stipulations, legacies, and other contracts to be executed after death were rejected, but We have permitted this to be done for the common welfare of mankind, as it appeared to be advisable that this rule, which was adopted in ancient times, should be amended by a more humane custom; for the old jurists did not allow actions to be brought by or against heirs in the case of stipulations
or other agreements to be carried out after death. It seems to Us to be necessary to abolish this ancient abuse, and to annul this rule, so that suits and obligations can be brought and enforced by heirs and against heirs, in order that the accomplishment of the wishes of the contracting parties may not be frustrated, through the excessive subtlety of the legal terms employed.
Given at Constantinople, on the fifteenth of the Kalends of November, after the Consulate of Lampadius and Orestes, 531.
TITLE XII.
A WIFE CANNOT BE SUED ON ACCOUNT OF HER HUSBAND,
OR A HUSBAND ON ACCOUNT OF His WIFE, OR A MOTHER
ON ACCOUNT OF HER SON.
1. The Emperors Diocletian and Maximian, and the Csesars, to Asclepiodota.
You will argue in vain with reference to the validity of contracts made by your husband, as it is sufficient for your protection that you made no contract in your own name to prevent your being sued on his account; for, under the terms of the Decree of the Senate, nothing can legally be collected from you, even if you have voluntarily offered yourself as his, surety.
Given on the day before the Ides of April, during the Consulate of Diocletian, Consul for the third time, and Maximian, 287.
2. The Same to Terentia.
The laws forbid that women should be annoyed on account of the faults of their husbands. Hence the Imperial Accountant, where property has been seized by the Treasury and you can prove that it is yours, must obey the public law.
Given on the third of the Nones of September, during the Consulate of Diocletian and Maximian, 287.
3. The Same, and the Csesars, to Carpophorus.
As you allege that you have not given the property in question to your daughter, by way of dowry, but for her support exclusive of the dowry, these lands are not subject to civil or municipal charges of a husband, any more than mothers can be rendered liable for debts due from their sons; as it is settled that a husband cannot be sued for an obligation contracted by his wife, unless he himself became surety for the same, since it is perfectly clear that no one can be liable for the contract of another.
Given on the third of the Ides of September, during the Consulate of the above-mentioned Emperors, 293.
4. The Same, and the Cassars, to Philotera.
As you state that you have been sued on account of the indebtedness of your son for the reason that you have already appeared to
have paid a portion of the same, you have a perfect right to avail yourself of your means before the judge having jurisdiction of the case, so that he may prevent you from being compelled to pay the debts of another.
Given on the tenth of the Kalends of September, during the Consulate of Titian and Nepotian, 301.
Extract from Novel 52, Chapter I. Latin Text.
Anyone who attempts to make use of the property of one person to pay the debts of another, just as if it was pledged for that purpose, shall be compelled to repay fourfold its value, whatever that may be, to "the person who suffered the wrong, and shall lose his right of action to recover the debt for the payment of which he took the property.
TITLE XIII.
A SON CANNOT BE SUED ON ACCOUNT OF His FATHER,
OR A FATHER ON ACCOUNT OP His EMANCIPATED SON, OR
A FREEDMAN ON ACCOUNT OF His PATRON, OR A SLAVE
ON ACCOUNT OF His MASTER.
1. The Emperor Gordian to the Soldier Candidus.
A father cannot be sued on account of the debt of his son who is his own master, where he did not become his surety; nor can he be sued for it when he is under his control, if he made the contract without his consent; nor will he be liable where, contrary to the terms of the Macedonian Decree of the Senate, a larger sum was lent than the value of the peculium. Wherefore, if your father has had money extorted from him by the creditor of your brother, for the payment of a debt for which he was not liable, he can recover it with the aid of the Governor of the province.
Given on the third of the Nones of October, during the Consulate of Pius and Pontianus, 239.
2. The Emperors Diocletian and Maximian to Neotherius and Eutolmiis.
The Governor of the province must provide that you shall not, contrary to law, be annoyed by someone by whom your father, who you allege has emancipated you, has been called to assume a civil office.
Given on the eighth of the Kalends of February, during the Consulate of Maximus, Consul for the second time, and Aquilinus, 286.
3. The Same, and the Csssars, to Theogenes.
Where a son has been appointed a decurion without the consent of his father, it has been very clearly provided by law that his father cannot be annoyed on his account.
Given on the tenth of the Kalends of May, during the Consulate of the Caesars, 294.
4. The Same, and the Ciesars, to Achiva.
It is settled that a son cannot be sued in a personal action on account of the indebtedness of his father, or be liable for his municipal charges if his father is still living.
Given on the twelfth of the Kalends of March, under the Consulate of the Caesars, 300.
5. The Same, and the Ciesars, to Lampetim.
Neither freedmen nor slaves can be sued on account of contracts made by their patrons and masters.
Given on the Ides of April, during the Consulate of the Caesars, 300.
A New Constitution of Frederick.
After a careful investigation and examination made by the bishops, abbots, dukes, and other officials of Our Sacred Palace, We grant the following privilege to all those who journey for the purpose of study, and especially to the professors of Divine and Imperial laws, namely: that they, as well as their messengers, shall remain secure in the places in which they reside. For as they all do good, We think that they are worthy of Our praise and protection at all times, as the entire world is illuminated by their learning, and Our subjects are instructed by them to be obedient to God and Our ministers; and therefore, by means of this special favor, We desire to guard them against all injury. For who is there who would not pity those who, having become exiles through the love of learning, and from being wealthy have become poor, and exhaust their strength, and expose their lives to many dangers, and frequently suffer bodily injury from the vilest of mankind without a cause, which is hard to bear? Therefore We decree by this general law, which shall be valid for all time, that no one shall dare to presume to inflict injury upon students, or cause them any loss on account of the crime or indebtedness of another, in any province whatsoever (which We have ascertained is sometimes done in accordance with an improper custom).
Those who violate this Sacred Constitution, as well as the Governors of the places in which they live, and who neglect to punish them, are hereby notified that they shall be compelled to pay fourfold damages, be branded by the law with infamy, and be forever dismissed from their employments. If, however, anyone should desire to institute legal proceedings against such persons, because of any transaction, this shall be done at the option of the students, either before their master or professor or the bishop of the city, upon whom We have conferred this jurisdiction. Anyone who attempts to bring them before another judge, even if his claim should be perfectly just, shall lose his case.
We order that this law shall be inserted among the Imperial Constitutions under this Title: "A son shall not be sued on account of his father, etc."
Given during the month of November, 1158.
TITLE XIV.
WHETHER A SLAVE is LIABLE FOR His OWN ACT AFTER His MANUMISSION.
1. The Emperors Severus and Antoninus to Juventian.
Although you have made a contract with a slave who is to be free under a condition, you should know that after the condition upon which his liberty depends has been complied with, you will have no right of action against him for what he may have previously done.
Given on the fourth of the Ides of December, during the Consulate of Dexter, Consul for the second time, and Priscus, 197.
2. The Emperor Antoninus to Bexicus.
No action will lie against you in favor of your creditors who lent you money while in slavery, especially as you state that no peculium was bequeathed to you.
Given on the third of the Kalends of September, during the Consulate of Laetus and Cerealis, 216.
3. The Emperor Alexander to Herod.
Where money has been promised to you by your slave, in consideration of your manumitting him, and after you have done so you do not make any stipulation with him, you will be entitled to an action in factum against him.
Given on the Ides of September, during the Consulate of Alexander, 227.
4. The Emperor Gordian to Hiero.
A slave who is said to have stolen a sum of money from your mother cannot be sued for an offence of this kind, although this may have been done at the time that she was in slavery, but having once obtained her freedom, she will be liable to an action of theft; for the injury follows the person.
Given on the Ides of September, during the Consulate of Pius and Pontianus, 239.
5. The Same to Chrestus.
If, as you allege, you cultivated your master's land before you were manumitted by him, and you were afterwards presented with your freedom, but were deprived of your peculium, any property which you may have previously contractd for, or have acquired by your own labor after your manumission, can by no means be taken from you.
Given on the sixteenth of the Kalends of December, during the Consulate of Arian and Pappus, 344.
6. The Emperors Diocletian and Maximian, and the Csesars, to Felicianus.
If those whom you mention in your petition are slaves, dispose of their cases at home, because no action at law can exist between masters and slaves. If, however, they were manumitted after committing
the offence, there is no legal rule which permits suit to be brought by their former masters for anything which had been done by them before they were enfranchised. But where they have committed any illegal act after their manumission, you must prove this before the Governor of the province, and you will obtain a decision in accordance with law.
Given on the second of the Ides of April, at Byzantium, during the Consulate of the above-mentioned Emperors, 287.
TITLE XV.
WHEN THE TREASURY, OR A PRIVATE INDIVIDUAL, CAN OR SHOULD SUE DEBTORS OR THEIR DEBTORS.
1. The Emperors Severus and Antoninus to Valerian.
The property of a guardian, who holds nothing belonging to his ward, cannot be seized on account of the debts of the latter.
Given on the eleventh of the Kalends of June, under the Consulate of Lateranus and Rufinus, 198.
2. The Emperor Antoninus to Marcus.
If, in the case of a judgment against Valens, which you state that you have obtained, nothing can be sold without having recourse to execution; his debtors, having been sued, will be compelled to make payment by the authority of the Governor of the province.
3. The Emperor Gordian to Primanius.
If those persons whom you allege are indebted to the debtors of the Treasury do not deny their liability, what you ask does not seem to be unjust, that is to say, that they be compelled to make payment by the Attorney of the Treasury. When, however, any question arises with reference to this, you yourself will perceive that it should not be permitted.
Given on the sixth of the Kalends of February, during the Consulate of Sabinus and Venustus, 241.
4. The Emperors Diocletian and Maximian, and the Csesars, to Zosimus.
It is a positive rule of law that suit cannot be brought by the Treasury against persons who are indebted to the debtors of the Treasury, unless it is clearly established that the latter are not solvent.
Given on the twelfth of the Kalends of May, during the Consulate of the above-mentioned Emperors, 293.
5. The Same, and the Csesars, to Nanida.
When a claim has been given in satisfaction of a debt, the creditor cannot proceed against the debtors of the person who has made payment in this way, unless he assigns his rights of action; but he can legally avail himself of an equitable action in his own name.
Given on the Kalends of January, under the Consulate of the Caesars, 294.
TITLE XVI. CONCERNING HEREDITARY ACTIONS.
1. The Emperor Gordian to Hermerotiis.
You should demand the money which you say was owing to you from your mother in proportion to the share to which you are entitled from her heirs, who are your co-heirs; but you will not be prevented from attempting to collect what is due to you out of the property encumbered for the debt.
Given on the eleventh of the Kalends of March, during the Consulate of Gordian, Consul for the second time, and Pompeianus, 242.
2. The Emperor Decius to Telemacha.
It has been decided that heirs are liable for hereditary charges in proportion to their shares of the estate, even where the said charges are those of the Treasury, unless property has been pledged or hypothecated, for then the possessor of the encumbered property should be sued.
Given on the fourteenth of the Kalends of November, during the Consulate of .ZEmilianus and Aquilinus, 250.
3. The Emperors Diocletian and Maximian, and the Csesars, to Maxima.
Sue the heir of your former husband for the restoration of your dowry, as you will in vain ask that a personal action be granted you against the debtors of the estate.
Given on the fourteenth of the Kalends of May, during the abovementioned Consulate, 293.
4. The Same, and the Csesars, to Crispus.
It is perfectly clear that payment of the debt cannot be deferred under the pretext that the debtor of the estate is under age, and therefore, as you state that you are his guardian, you should endeavor to have him satisfy his creditors.
Given on'the tenth of the Kalends of December, under the Consulate of the above-mentioned Emperors, 293.
5. The Same, and the Csesars, to Julius.
As you ask in your petition that a debt shall be paid before the estate is entered upon, We order inquiry to be made whether it belongs to you, or not; for if it should be established that you have a right to the estate of your father-in-law, there is no doubt that the claim for the debt is extinguished by merger.
Given on the day before the Nones of March, during the Consulate of the Csesars, 294.
6. The Same, and the Csssars, to Domnus.
If the adult girl (whose guardianship you state that you have administered), and whose curator you now are, is the heir to a third
of her paternal uncle's estate, and has not been forbidden to acquire anything from it, she will be permitted to collect a debt from her coheirs in proportion to two-thirds of the estate, as the claim is not merged except with reference to the share to which she is entitled; for it is against the interest of your ward that you ask that the will be set aside, since the co-heirs bind themselves for payment when they accept the estate. And if, after a division of the property has been made, it should be proved that they are not solvent, the Governor of the province will see that she sustains no loss.
Given on the Kalends of December, during the above-mentioned Consulate, 299.
7. The Same, and the Ctesars, to Apolaustus.
It is settled that the creditors of the estate are not entitled to a personal action against the legatee, as the Law of the Twelve Tables undoubtedly renders the heirs liable to such an action.
Given at Nicomedia, on the sixth of the Ides of December, during the Consulate of the Csesars, 300.
TITLE XVII.
FOR WHAT AN AMOUNT HEIRS CAN BE SUED ON ACCOUNT OF THE CRIMES OF DECEASED PERSONS.
1. The Emperors Diocletian and Maximian, and the Csesars, to Macedonus.
It is an absolute rule of law that where anyone has been guilty of violence, extortion, or any other crime, and then dies after issue has been joined in the case, his heirs will be liable in full; otherwise they can only be sued for what has come into their hands, lest they may profit by the illegal act of another.
Given on the fifth of the Kalends of May, during the Consulate of the Csesars, 294.
TITLE XVIII. CONCERNING THE SUM OF MONEY AGREED UPON.
1. The Emperor Gordian to Felix.
If you have consented to discharge someone else's debt, the action to recover the money which you have promised to pay can not only be brought against you, but also against your heirs, without limitation of time.
Given on the seventh of the Kalends of July, during the Consulate of the Csesars.
Extract from Novel 115, Chapter VI. Latin Text.
Where anyone agrees to pay a sum of money for himself or for some other person, or promises to do so, saying, "I will pay you,"
he will be liable for the amount which he agreed to pay. If, however, he should say, "You shall be paid by me, and by So-and-So and So-and-So," without the consent of the persons whom he mentioned, he will only be liable pro rata for the amount for which he obligated himself. But when making use of the impersonal verb, he says, "It shall be paid," he will not be responsible. If, however, he should say, "You shall be paid either by me, or by So-and-So," and he whom he mentioned does not consent, he alone will be liable in full.
2. The Emperor Justinian to John, Pretoria/n Prefect.
The Actio receptitia, which is founded on formal statements, having fallen into disuse, it seems to Us necessary to extend the application of the Actio pecuniss constitutive. Therefore, as this action for recovery was formerly only available where the property in question could be weighed, counted, or measured, and was not applicable to all cases, but, in certain instances, could only be brought during the term of a year; and as it was doubtful whether it was possible for it to be brought to collect a debt dependent upon a condition, or whose payment was fixed at a certain time, or whether it could be employed merely with reference to a sum unconditionally agreed upon; We direct, by this perfectly clear law, that all persons shall be permitted to contract, not only for property which can be weighed, counted, or measured, but also for every other kind, whether it is movable or immovable, or can move itself, or is established by documents; and, in short, for everything which men can make the subject of a stipulation.
We also direct that the action, in every instance, shall not be limited to a year, but whether the person contracts for himself or someone else, it can be brought for the same period which is permitted in all personal actions, that is to say, during the term of thirty years; and that it shall be lawful to .agree to pay the debt absolutely; or at a certain time; or under some condition; and that it shall have all the force of a stipulation, and still not be deprived in any respect of its natural privileges, but can be brought both by and against heirs, so that the State, in cases of this kind, may not need the aid of the Actio receptitia; but that this action for the recovery of money promised will, by Our Constitution, be sufficient in all respects, and be an inherent part of the same, and that the agreement may take the place of the obligation; while, on the other hand, by means of the ancient Actio receptitia, the debt could be collected, even if it was not due.
It is perfectly absurd and contrary to the practice of Our age, as well as opposed to just laws, to permit property which is not due to be recovered by the Actio receptitia, and to re-establish many suits which will authorize the collection of money which is not owing