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BOOK FORTY-FOURIOBLIGATIONS AND ACTIONS 153 self but also to the freedman's successors; and it must be observed that conversely the heir of a patron must be barred if he proceeds with the action. 2 PAUL,Edict, book 71: If a son-in-power has been tendered an oath and he swore that his father was not liable to pay, the father must be allowed the defense. 1. When, while gambling , I sold property in order to gamble and I am sued after having been evicted from the property, the purchaser will be barred by a defense. 2. If a slave promises money to his master in order to be manumitted, since the master otherwise would not have manumitted him, and when he became free he promises that money, it is said that the defense will not bar the patron if he claims that money; for this money has not been promised for the purpose of encumbering liberty. Otherwise, it would be unfair that the master should forfeit both the slave and his money. Consequently, money is considered to be promised with the effect of encumbering liberty, whenever a master has of his own accord manumitted someone and wants this freedman to promise money with a view, not to claim the money, but that the freedman should fear and obey him. PROPERTY SUBJECT TO LITIGATION 1 ULPIAN,Edict, book 76: A notice given to prevent a sale does not cause the property to be subject to litigation. 1. If joinder of issue has occurred between Primus and Secundus and I bought the property from Tertius who had no part in the dispute, let us see whether there is room for the defense. And I would think that relief ought to be given to me because the person who sold the property to me had no part in the suit, and because it can happen that two persons engage in a suit with each other to the prejudice of one with whom they could not litigate. If, however, a suit has been joined with a procurator, tutor, or curator of someone, the effect will be to hold that he will be subject to the defense as if the litigation was with himself. 2 ULPIAN,Fideicommissa, book 6: If a slave knows what he bought while his master did not know, or conversely, it must be considered whose knowledge must be regarded as having priority. And the better view is that the knowledge of the person who purchased, and not of the person for whom the property is acquired, must be considered, and, consequently , the penalty of litigious property applies, provided, however, he purchased without the instructions of his master; for if the slave acted on instructions, his knowledge does not affect the issue, even if he knew; and thus Julian too writes with respect to property subject to litigation. 3 GAIUS,XII Tables, book 6: We are prohibited from dedicating property about which there is a suit as sacred property; if we act to the contrary, we suffer a penalty of double, and rightly so, lest by such conduct we be allowed to make the position of our adversary harder. But nothing is stated as to whether the double penalty ought to be paid to the imperial treasury or to the adversary; perhaps, however, it should preferably be paid to the adversary so that he may, so to speak, derive solace from the fact that he has been treated as the more powerful adversary. OBLIGATIONS AND ACTIONS 1 GAIUS,Golden Words, book 2: Obligations arise either from contract or from wrongdoing or by some special right from various types of causes. 1. Contractual obligations are concluded either by delivery of a thing or by words or by consent. 2. An obligation by delivery [real obligation] is concluded by giving a loan for consumption. However, the giving of a loan for consumption (mutuum)operates in the case of things which are dealt with by weight, number or measure, such as wine, oil, corn, cash money, things which we hand over with the effect that they may become the property of the recipient, and so that we shall afterward receive back other things of the same kind and quality. 3. Also he to whom BOOK FORTY-FOUR/OBLIGATIONS AND ACTIONS 153 self but also to the freedman's successors; and it must be observed that conversely the heir of a patron must be barred if he proceeds with the action. 2 PAUL...


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