5. IN WHICH CASES AN ACTION IS NOT GIVEN
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BOOK FORTY-FOURIAN ACTION IS NOT GIVEN IN WHICH CASES AN ACTION IS NOT GIVEN 1 ULPIAN,Edict, book 76: An oath not undeservedly occupies the role of res judicata, since the person himself made his adversary judge of his own cause when he tendered an oath to him. 1. If a pupillus has tendered an oath without the authority of his tutor, we shall say that the defense [of an oath] is not available, unless the tender was made on authority of the tutor at the trial. 2. If the claimant of land tendered an oath to his adversary that he would withdraw from the dispute if the author of the latter's title has sworn that he had delivered the land as his own, the defense will be allowed to the possessor of the land. 3. If a surety has taken an oath, if he has taken the oath solely with respect to his own position to the effect that he himself was not liable, it will not be operate in favor of the principal debtor; however, if he has sworn with respect to the property (in rem), the defense will be allowed to the principal debtor too. 4. If I have manumitted a slave who had administered my affairs while he was a slave and thereafter I stipulated from him that, because he was administering my affairs, whatever he would be owing me in that connection if he had then been free, that shall be paid, and if I subsequently were to sue on the stipulation, I am not barred by a defense; for a freedman cannot complain that he has been harmed on that account, if he does not make a profit derived from the affairs of his patron. 5 Whatever I have stipulated with the effect of encumbering liberty, that I cannot demand from a freedman. Moreover, acts with the effect of encumbering liberty have been very splendidly defined in the followingway, namely, as duties which are imposed in such a manner that if the freedman should offend his patron, they can be demanded from the freedman and that he is always subject to the fear of such a demand, and that because of such duress he is liable for something at the behest of his patron. 6. In sum, if something has been imposed on a freedman as immediate part of a contract which encumbers his impending liberty, it must be said that it gives rise to a defense. But if it has been imposed after expiry of an interval, the position, indeed, is doubtful, because no one has compelled him to make such a promise; yet even in such a case, if, after the case has been heard, it were clearly to appear that the freedman has subjected himself in this way solely through fear or through excessive reverence for his patron, it will have to be accepted that he has subjected himself to a kind of penal stipulation. 7. If, for the sake of his freedom, a freedman entered into a partnership with his patron and the patron were to bring an action of partnership against the freedman, is this defense required? And I am of the opinion that the freedman is ipsojure protected against the demand of his patron. 8. It must be observed that a defense based on encumbrance of liberty, like any other defenses, ought not to be refused to a surety, nor, indeed, to one who has become a debtor at the request of a freedman ; but it ought to be refused to the freedman himself, if he has been appointed procurator to defend the case by the debtor, or if he has become heir to him [the debtor]. For since it was the purpose of the praetor to aid a defendant in obligations of this kind, his purpose will not be fulfilled if he did not protect the surety, as well as the person who became debtor at the request of the freedman against the patron; for it makes little difference whether the freedman was required to pay the patron directly or whether through the intermediate agency of the surety or the debtor. 9. However, whether the promise was made to the patron himself or to another at the wish of the patron, it is regarded as having been made in order to encumber liberty, and, consequently, this defense will be of application . 10. But if a patron has substituted his freedman as debtor to his creditor...