| THE
ENACTMENTS OF JUSTINIAN. THE CODE. ~ Book VIII ~ |
( S. P. Scott, The Civil Law, XIV, Cincinnati, 1932 ). |
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| Title
1. Concerning
interdicts. As you allege that
the roots of trees planted on the neighboring land of Agathangelus
threaten the safety of your house, the Governor, by virtue of the
edicts published by the Praetor, and which begin as follows, "If
the tree extends over the house of another," or "If it projects
over the field of another," and it is proved to those who have
charge of such matters that no injury can be caused to the neighbor
by said trees, the question will be decided as justice requires. Published on the sixth
of the Kalends of April, during the Consulate of Julian, Consul
for the second time, and Crispinus. 2. The Emperors
Valerian and Gallienus to Messia. The Governor of the
province cannot, even by means of an interdict, proceed against a
person who is not a resident of the province. Published on the seventh
of the Kalends of May, during the Consulate of Secularis and Donatus,
261. 3. The Emperors
Diocletian and Maximian, and the Caesars, to Pompeianus, Praetorian
Prefect. It is a well-known
rule of law that where legal proceedings have been instituted with
reference to the possession or ownership of property, the question
of possession must first be determined by a proper action, and after
this has been done, the proof of the disputed ownership shall be required
of him who was defeated in the case involving possession. But although
interdicts are not properly applicable in extraordinary proceedings,
still a case of this kind must be decided in the same manner. Published at Sirmium,
on the Kalends of January, during the Consulate of the above-mentioned
Emperors. 4. The Emperors
Arcadius and Honorius to Aemilianus, Praetorian Prefect. When anyone wishes
to avail himself of an interdict, he must be ordered to make his allegations,
and state his case in the ordinary manner in court, avoiding the technicalities
employed by the ancients in proceedings of this description. Published on the thirteenth of the Kalends of . . . , during the Consulate of Arcadius, Consul for the sixth time, and Probus, 406. Title
2. Concerning the interdict Quorum bonorum. If you intend to claim
the estate which you allege belonged to your father, prove the facts
upon which you base your claim before the judges having jurisdiction
of the case. For although, after having been passed over in the will,
you have accepted Praetorian possession of the estate, still, you
cannot obtain possession by virtue of the interdict Quorum bonorum,
unless you can prove that you are a son of the deceased, and that
you have acquired the estate itself, or Praetorian possession of the
property constituting the same. Published on the eighth
of the Kalends of January, during the Consulate of Lateranus
and Rufinus, 198. 2. The Emperors
Diocletian and Maximian, and the Caesars, to Marcus. If, by virtue of the
Edict, you demanded the estate after having obtained possession of
the same (it having belonged to the sister of your paternal uncle
who died intestate, without leaving any children), and you were successful
in your application, the Governor of the province will cause the property
which belonged to her at the time of her death and which was held
by others, either as heirs or possessors of or which they have fraudulently
relinquished possession to be delivered to you, in accordance with
the tenor of the interdict Quorum bonorum. Published on the sixth
of the Kalends of April, during the Consulate of the Caesars. 3. The Emperors
Arcadius and Honorius to Petronius, Vicegerent of the Spains. It is established that
a husband is excluded from the estate of his wife who died intestate,
leaving brothers, as the opinions of all jurists, as well as the Law
of Nature itself, make them her heirs. Therefore We order, all efforts
to the contrary notwithstanding, that the property shall be transferred
to the claimant under the interdict Quorum bonorum, and that the action with reference to the ownership of
the same shall not be barred. Given at Milan on the sixth of the Kalends of August, during the Consulate of Olybrius and Probinus, 395. Title
3. Concerning the interdict Quorum legatorum. There is sufficient
provision made for the appointed heir by the Falcidian Law, which
authorizes him to retain the fourth of the estate where it is proved
to have been exhausted by the legacies. Wherefore, if the legatee,
or the beneficiary of the trust, whom you assert succeeded the testator,
accepted possession of the estate without the consent of your father,
and retained the legacy or other property left to him by the terms
of the trust, you can begin proceedings under the interdict by which
provision is made for the appointed heirs, as against the legatees,
and after having furnished the security which must be given, you can
be placed in possession of the property and retain the fourth of the
same to which you are entitled. Given on the sixteenth of the Kalends of January, during the Consulate of the above-mentioned Emperors. Title
4. Concerning the interdict Unde vi. A person lawfully in
possession has the right to use a moderate degree of force to repel
any violence exerted for the purpose of depriving him of possession,
if he holds it under a title which is not defective. Published on the fifteenth
of the Kalends of December, during the Consulate of Diocletian,
Consul for the fourth time, and Maximian, Consul for the third time,
290. 2. The Same Emperors
and Caesars to Alexander. It is a positive rule
of law that, by the employment of an interdict, those who have been
forcibly ejected from property can have it restored to them if the
available year has not expired, and that the heirs shall be liable
for the amount which in the meantime has come into their hands. Ordered during the
Consulate of the above-mentioned Emperors. 3. The Same Emperors
and Caesars to Ulpia and Proculina. You made an exceedingly
improper demand when you requested Us to grant you the authority of
an Imperial Rescript to confirm your possession
of property which you acknowledge you obtained by violence. Ordered on the eighth
of the Ides of April, during the Consulate of
the Caesars. 4. The Same Emperors
and Caesars to Hyginus. If you have been forcibly
dispossessed, you can bring suit under the Lex Julia having
reference to private violence against the guilty party and, under
the terms of the interdict, you, as the former possessor, can compel
him to give you possession, and there is no doubt that he can also
be compelled to surrender the income which he may have obtained from
the land. Ordered at Sirmium,
on the sixth of the Ides of April, during the Consulate of
the Caesars. 5. The Emperor Constantine
to Tertullians. Anyone who has seized
land is liable to the penalty prescribed by law, provided he is proved
to have been guilty of violence, for, when the possession of property
is obtained by others, either through mistake or the negligence of
the owner, it should be restored without the imposition of a penalty. Given on the sixth
of the Kalends of May, during the Consulate of Gallicanus and
Symmachus, 330. 6. The Emperors
Gratian, Valentinian, and Theodosius to Potitus, Prefect of the City. All persons are informed
that, in every instance where the owners of property are sued either
under a Rescript published by the Emperor, or by virtue of the decision
of any judge, and the parties are absent, notice should be served
upon their agents or attorneys, in order that no occasion for injury
may arise from the source of the law. If the litigants should fail
to obey Our orders, they shall be deprived of all rights to the matter
in dispute. (1) When the curators
or guardians of minors, acting in collusion, cause the said minors
to lose their cases, and be deprived not only of the property which
they are entitled to, but of the profits as well, We come to their
relief in order that they may not suffer injury through the culpable
rashness of others. Possession shall at once be restored to him who
was deprived of it, and the curators or guardians shall be punished
by perpetual banishment, and their property confiscated. Given on the second
of the Nones of April, during the Consulate of Antoninus and
Syagrius, 382. 7. The Emperors
Valentinian, Theodosius, and Arcadius to Messianus, Count of Private
Affairs. If anyone should be
so bold as to forcibly seize property in possession of the Treasury,
or of any persons whomsoever, before a judicial decision has been
rendered, the owner of the same, after having established his right
to the possession of what he took, shall restore it to the possessor,
and shall lose all title to the said property. If, however, he forcibly took possession of what
belonged to another, he shall not only restore it to the possessor,
but shall also be compelled to pay him the value of said property. Given on the seventeenth
of the Kalends of June, during the Consulate of Timasius and
Promotus, 389. 8. The Emperors
Arcadius and Honorius to Paliphilus. The interdict of temporary
possession, which does not always have reference to public or private
violence, shall be heard at once, and without being reduced to writing. Given at Milan, on
the sixth of the Ides of June, during the Consulate of Olybrius
and Probinus, 395. 9. The Emperor Zeno
to Sebastian, Praetorian Prefect. If, after the act of
violence has been proved in court, the question with reference to
the property removed or seized is taken up, as well as the damage
sustained at the time, and the person who suffered the violence cannot
prove the loss of each individual article, an estimate having been
made by the judge in accordance with the character of the person,
and the nature of the transaction, the plaintiff must establish by
his oath the general value of the property which he lost, but he shall
not be permitted to swear to an estimate higher than that fixed by
the judge, and the amount having been stated under oath in this manner,
the court must render judgment accordingly. Given at Constantinople,
on the Ides of December, after the fifth Consulate of Armatius,
477. 10. The Same Emperor
to Sebastian, Praetorian Prefect. It is not unreasonable
for an ancient constitution, as well as the present one, to declare
that those who unlawfully seize the possession of another should be
punished. Hence those who lease or retain possession of property belonging
to others cannot, with impunity, attempt to prevent the lessors of
said property from recovering possession of it according to law, which
possession they only granted them temporarily, when the latter can
advance no legal right to the same, and prefer to offer resistance,
and not suffer the owners to recover the possession to which they
are justly entitled, but wait for an order of court. If the decision
should, under such circumstances, be against them, We decree that,
for their impudence and injustice, they shall not only be compelled
to surrender to the successful party possession of the property which
they were unwilling to voluntarily restore to the owner until a final
decision had been rendered, but also to pay him a sum equal to its
value. Given at Constantinople,
on the fifth of the Kalends of April, during the Consulate
of Theoderic and Venantius, 424. 11. The Emperor
Justinian to John, Praetorian Prefect. When a doubt arose
among the members of the Illyrian Bar, as to what course should be
pursued concerning those who, without the authority
of a judicial decree, retained possession of property left vacant
during the absence of the owner, for the reason that the ancient laws
did not provide for the recovery of possession of this kind, either
by the interdicts Unde vi or Quod vi out clam, or by
any other legal proceeding, violence not having occurred in taking
possession of the property, and as no action was allowed the owner
except the one in rem, We, not permitting anyone to seize the
property or possession of others by his own authority, do hereby order
that a possessor of this kind shall be understood to be a thief, and
held liable under the general provisions set forth in the ancient
laws treating of the restitution of possession against persons of
this kind. For it is ridiculous to say or believe that anyone could,
through ignorance, occupy property belonging to another as his own.
All persons should know that what is not theirs must assuredly belong
to someone else, as a provision of this kind was long ago prescribed
by the ancient laws in the action of theft, for they declared that
if anyone should take the property of another without the consent
of the owner, he will be liable in an action of theft; and the laws
which have been promulgated by Us with reference to the recovery of
possession shall be applicable to these cases, if the term of thirty
years from the time when possession was taken has not elapsed. Given on the thirteenth of the Kalends of November, after the fifth Consulate of Lampadius and Orestes, 532. Title
5. Where the possession of an absent person is interfered with by
force or in any other way. The judges of absent
persons who have been deprived of the possession of property must
admit their legal demands, as well as exert the full force of their
authority to protect them, and diligently inquire whether the possession
of him who is absent for any reason was retained in his behalf, by
one of his neighbors, ascendants, relatives, friends, tenants, freedmen
or slaves. Nor shall the claims of those who have possession in the
name of the absent party be rejected, even if they are slaves, on
the ground that they were not authorized to institute legal proceedings
by the owner, although it is not lawful for persons of this condition
to appear in court. But
after the time for recovering possession prescribed by law has elapsed,
temporary possession shall be granted without any delay to the parties
bringing suit, just as if the owner of the property, having returned,
was conducting the case. We,
however, grant the owner the right of action to recover possession,
no matter when he may return, because restitution of possession might,
in the meantime, be deferred on account of the bad faith of slaves,
or the negligence of neighbors, parents, friends, tenants, or freedmen,
as the expiration of the time prescribed by law for the recovery of possession should not prejudice the
rights of those who are absent. Everything
unjustly interfered with having been restored to its former condition,
whatever relates to the discussion of the case shall remain unaltered,
and decision shall be reserved until the appearance of the just and
lawful owners, who are absent, as it is amply sufficient for protection
against acts of violence to be afforded those holding possession of
the property in the name of the absent parties. Given at Constantinople,
on the Kalends of November, during the Consulate of Constantius,
Consul for the seventh time, and the Caesar Constans, Consul for the
third time, 326. 2. The Emperors
Arcadius and Honorius to Petronius, Vicegerent of the Spains. No answer of the Emperor
obtained by the petition of a litigant, nor any interlocutory decree
of a judge can, in any manner, change the condition of the possession
so far as an absent person who is entitled to the ownership of the
property is concerned, because the merits of the case must be determined
by the evidence of the parties interested. Given at Milan, on the fifteenth of the Kalends of January, during the Consulate of Caesarius and Atticus, 397. Title
6. Concerning the interdict Uti possidetis. The Governor of the
province, by employing the interdict Uti possidetis, will prevent
any violence being done to you because of the land in dispute, provided
you have not obtained possession of the same from another, either
by force, clandestinely, or under a precarious title, and he will
examine the question of ownership after the provisions of the Perpetual
Edict with reference to furnishing security or transferring possession
have been complied with. Given at Nicomedia, on the third of the Ides of October, during the Consulate of the Caesars. Title
7. Concerning the production of wills.
1. The Emperors
Valerian and Gallienus to Germanus. If the children under
the age of puberty were subject to the control of their father, and
you were substituted for them, and they died before reaching puberty,
the estate will belong to you, and you can avail yourself of the interdict
to compel the production of the will. Published on the seventh of the Kalends of May, during the Consulate of Secularus and Donatus, 261. Title
8. Concerning the production or introduction of children and freemen
in court. If (as you allege)
you are your own master, and have obtained a judgment with reference
to the property of the mother's estate, you can sue the persons against
whom a decision was rendered in your favor. If, however, anyone should
appear who asserts that you are his son and under his control, recourse
having been had to the interdict, the truth of his claim shall be
investigated. Published on the sixth
of the Ides of April, during the Consulate of the two Aspers,
213. 2. The Emperors
Diocletian and Maximian, and the Caesars, to Cyrilla. Go before the Governor
of the province and demand that your sons be produced. Published at Byzantium
on the fifth of the Ides of April, during the Consulate of
the above-mentioned Emperors. 3. The Same Emperors
and Caesars to Evodia. If you think that Philip
should, by means of an interdict, be compelled to produce his daughter,
the Governor of the province, having been applied to, will take cognizance
of your dispute. Ordered at Nicomedia, on the twelfth of the Kalends of December, during the Consulate of the above-mentioned Emperors. Title
9. Concerning the precarious and Salvian interdicts. If your debtor should,
without your releasing the lien, sell property which has been pledged
to you, you will have the right to claim the said property, but not
under the Salvian interdict, for it can only be employed against a
lessee or a debtor; but you must proceed by the Servian Action, or
the one which has been devised in imitation of it, and which should
be brought against the purchaser. Published on the sixth
of the Ides of September, during the Consulate of Pius and
Pontianus, 239. 2. The Emperors
Diocletian and Maximian, and the Caesars, to Fabricius. It is clearly stated in the interdict to be filed against them that the heirs of one who had a precarious right of habitation are required to surrender the house to which the right attaches. Title
10. Concerning private buildings. You can (as you desire
to do) construct a bath, and place a building above it, provided,
however, that you observe the law enacted with reference to those
who build above a bath; that is to say, you must erect the superstructure
as well as the bath itself upon arches, and do not raise it above
the ordinary height. Without date or designation
of Consulate. 2. The Emperor Alexander
to Diogenes. It is forbidden both
by an Edict of the Divine Vespasian and a Decree of the Senate to
demolish a building and remove the marble composing it for the purpose
of selling the same, but an exception is made where the marble is
to be transferred from one building to another, as this can be done.
Owners, however, are not permitted to transfer the materials in such
a way that, when the buildings are demolished, the general appearance
of the neighborhood will be rendered less attractive. Published on the eleventh
of the Kalends of January, during the Consulate of Alexander,
225. 3. The Same Emperor
to Evocatus. The Governor of the
province, after proper investigation, and in accordance with what
is frequently done in controversies of this kind which arise in towns,
must decide whether you will be permitted to demolish your entire
house, not for the purpose of rebuilding it in the city, but in order
to convert it into a garden, and whether this can be effected with
the consent of a magistrate and that of your neighbors. Published on the seventh
of the Kalends of April, during the Consulate of Julian, Consul
for the second time, and Crispinus, 225. 4. The Emperor Philip
and the Caesar Philip to Victor. If (as you allege)
the other joint-owner of the building refuses to pay his share of
the expense incurred for necessary repairs, you will not be obliged
to have recourse to extraordinary proceedings, as you propose to do,
for if you alone have rebuilt the house, and your partner does not
pay his share of the expense with interest at the rate of twelve per
cent within the term of four months, or if it should be proved that
he is to blame for not having done so, you can demand and obtain the
ownership of the entire property in accordance with the provisions
of the ancient laws. Published on the fourth
of the Kalends of April, during the Consulate of Philip and
Titian, 346. 5. The Emperors
Diocletian and Maximian, and the Caesars, to Octavius. If he against whom you have petitioned, being aware that the part of the land in question belongs to you, and well knowing that he had no rights either as a partner of a joint-owner, proceeded to construct a bath under the assumption of joint-ownership, with the intention of acquiring the entire property if you did not pay your share of the expense, and also attempted to rebuild a bath which had been demolished, and as all structures placed on the land of another belong to the soil, and the expense incurred in their construction should not be refunded to those who wrongfully erected them, under the terms of an ancient Edict of the Divine Hadrian, the Governor of the province, mindful of the public law on this point, shall act as legally required in the settlement of the controversy. Published on the sixth
of the Nones of October, during the Consulate of Diocletian,
Consul for the fourth time, and Maximian, Consul for the third time,
290. 6. The Emperor Constantine
to Elpidius, acting as Deputy of the Praetorian Prefect. If anyone, after the
promulgation of this law, should remove from the city to the country
any ornaments taken from a house, that is to say, any marble or columns,
he shall be deprived of the building which he decorated in this way.
Where, however, anyone desires to transfer any columns or marble from
a house which is falling into ruin in a city to another house of his
own in a different town, he shall be permitted to do so, as these
materials continue to be public ornaments, remaining as they do in
both instances, in cities. The
same authority is also granted to transfer ornaments of this kind
to another place of the same description, even though it may be necessary
to transport them through the middle of a city, or beyond the walls,
provided that those materials which have been taken from one town
shall only be used in another. Given on the sixth
of the Kalends of June, during the second Consulate of Crispus
and Constantius, 321. 7. The Emperor Julian
to Vitianus, Vicegerent of Africa. No one shall be permitted
to remove or transport any columns or statues, of any material whatsoever,
out of a province. Given on the sixth
of the Kalends of November, during the Consulate of Julian,
Consul for the fourth time, and Sallust, 363. 8. The Emperors
Valens, Gratian, and Valentinian to Modestus, Praetorian Prefect. The decurions of each city are required, even against their consent, either to repair houses within cities in which they formerly resided, or to entirely rebuild them, when this becomes necessary, because they are always obliged to discharge their duties in the same city in which they live, and should, so far as they can, contribute to the size of the same. The possessors of houses, who are not decurions, must repair them if they have fallen into decay and have been neglected, and the judges shall exert their authority to enforce observance of this law. Given on the thirteenth
of the Kalends of November, during the Consulate of Gratian,
Consul for the fourth time, and Nerobaudus, 377. 9. The Emperors
Theodosius, Arcadius, and Honorius to Aemilianus, Prefect of the City. Where anyone who owns
property in the neighborhood of a public building intends to erect
a house upon it, he must remember when building it to leave the space
of fifteen feet between the two edifices, so that, by means of this
space, the public building will not be endangered, and the private
individual will not, hereafter, run the risk of having his house demolished
for having constructed it in a place where he had no right to do so. Given on the tenth
of the Kalends of November, during the Consulate of Arcadius,
Consul for the sixth time, and Probus, 406. 10. The Emperors
Honorius and Theodosius to Monaxius, Praetorian Prefect. Persons who desire
to do so shall be permitted to surround their own lands, or premises
known to belong to them, with a wall, in the provinces of Mesopotamia,
Osdroena, Euphrates, Second Syria, Phoenicia, Libanus, Second Cilicia,
both the provinces of Armenia, both the Provinces of Cappadocia, Polemoniac,
Pontus, the Hellespont, and all other provinces where it may be desirable
to do so. Given at Constantinople,
on the third of the Nones of May, during the Consulate of Theodosius,
Consul for the eleventh time, and Constantius, Consul for the third
time, 421. 11. The Same Emperors
to Severinus, Praetorian Prefect. Balconies (called in
Greek teichiostas),
whether they have already been, or may hereafter be, built in
the provinces, shall, without exception, be demolished, unless they
have a space of ten feet between them for the free circulation of
air. Moreover, in places where the buildings of private individuals
adjoin public warehouses, the space of fifteen feet must be left between
the balconies. We have established this interval in the case of buildings
so that, if anyone should attempt to encroach upon the space prescribed,
that is to say, erect a balcony projecting over the distances of ten
and fifteen feet above mentioned, he may know that not only what he
built will be demolished, but that the house will itself be confiscated
to Our Treasury. Given on the third
of the Kalends of October, during the Consulate of Asclepiodotus
and Marinianus, 423. 12. This Law is
not Authentic. 13. The Emperor
Justinian to John, Praetorian Prefect. As a doubt arose whether
the Constitution of the Emperor Zeno, of Divine Memory, addressed
to Amantius, Prefect of the City, and relating to servitudes, was
only local in its effect, and intended to be observed in this most
flourishing City, and whether the ancient laws which conflict with
it were applicable to the provinces, We, thinking that it would be
unworthy of Our reign for one law to be obeyed in this way in this
Imperial City, and another by the inhabitants of Our provinces, do
hereby decree that the same constitution shall prevail in all the
cities of the Roman Empire, and that everything shall be done in accordance
with its provisions, and if the ancient law was, in any way, altered
by the present one, the latter shall be observed by the Governors
of the various provinces; in other words, all regulations which are
not changed by the Law of Zeno, but are contained in the ancient enactments,
shall everywhere remain in full force. Given at Constantinople, during the Kalends of September, after the fifth Consulate of Lampadius and Orestes, 531. Title
11. Concerning the notice prohibiting the erection of a new structure. We are aware that a
doubt arose among the ancients with reference to a notice not to erect
a new structure, and that where one person had warned another not
to proceed with it, he could not again prohibit him from doing so
after a year has elapsed from the time when the notice was served.
This appears to Us to be doubly unjust, for either he did not have
good grounds for forbidding him to erect the building (and if this
was the case it was not right that he should prevent him from doing
so for an entire year), or if he did have good cause to serve the
notice, he should be permitted again to forbid its construction after
the expiration of a year. Therefore
We, for the purpose of preventing such injustice, do order that if
anyone should serve a notice of this kind in this Imperial City, the
case shall be brought before the Urban Prefect, and if this is done
in any province, the matter shall be disposed of by the Governor of
the same within the term of three months. If, however, any impediment
should arise to prevent the decision of the case, he who was erecting
the building shall be allowed to proceed with the work, after having
furnished security to the Urban Prefect, or the Governor of the province,
that if his building should be ascertained to have been constructed
contrary to law he will demolish, at his own expense, all of it that
he erected after notice was served upon him. This
law is enacted in order that the construction of buildings may not
be prevented by notices which are unreasonable, and at the same time
that the interests of those who have good reason for serving such
notices may be protected. Given at Constantinople, on the twelfth of the Kalends of November, after the fifth Consulate of Lampadius and Orestes, 532. Title
12. Concerning public works. Many persons have,
through the concessions of judges, obtained exemption from the construction
of public works, and therefore We decree that unlawful privileges
of this description shall, hereafter, be of no force or effect. Given at Sirmium, on
the sixth of the Kalends of August, during the Consulate of
Ursus, Lupulus and Polemius, 338. 2. The Same Emperors
to Marcellinus, Count of the East. You understand that
where expenses have been incurred in the construction of public works,
credit should be given for the same. Given at Constantinople,
on the fifth of the Nones of October, during the Consulate
of Limenius and Catulinus, 349. 3. This Law is not
Authentic. 4. The Same Emperors
to Ecdicius, Prefect of Egypt. Buildings for the use
of judges, and public edifices, must always be devoted to the dispensation
of justice, and the use of the people. Published at Antioch,
on the fourth of the Nones of December, under the Consulate
of Mamertinus and Nevitta, 362. 5. The Emperors
Valentinian and Valens to Symmachus, Prefect of the City. No judge shall, without
Our sanction, erect a new building within the limits of ancient and
modern Rome, unless he wishes to do so at his own expense. We, however,
grant all of them permission to repair any building of which they
make use, if it is shown that it is about to fall into ruin. Given on the eighth
of the Kalends of June, under the Consulate of Jovian and Varonianus,
364. 6. The Emperors
Gratian, Valentinian, and Theodosius to Proculus. No prescription of
time, nor even the authority of a rescript, shall be pleaded in favor
of what has been done contrary to public law, and therefore all buildings
or other structures, which are known to have been erected in different
cities, either in the Forum or in any other public place, and are
injurious to the ornamentation, convenience, and suitable appearance
of the City, shall be demolished. Given at Constantinople,
on the third of the Ides of June, during the Consulate of Merobaudus,
Consul for the second time, and Saturninus, 383. 7. The Same Emperors
to Cynegius, Praetorian Prefect. All persons should
emulously and in unison assist in the repair or construction of harbors,
aqueducts, and walls; nor shall anyone's rank, no matter what it may
be, exempt him from the performance of this duty. Given at Constantinople,
on the fifteenth of the Kalends of February, during the Consulate
of Richomer and Clearchus, 384. 8. The Same Emperors
to Cynegius, Praetorian Prefect. All those to whom have
been committed the construction of public works, where money for this
purpose has been advanced to them in the ordinary way, shall, with
their heirs, be liable for their completion within the term of fifteen
years, so that if any defect of construction should be discovered
within the prescribed time, it may be made good out of their estates,
except in cases which are the result of accident. Given at Constantinople,
on the third of the Nones of February, during the Consulate
of Arcadius and Bauto, 385. 9. The Emperors
Theodosius, Arcadius, and Honorius to Aurelian, Prefect of the City. Your Highness knows
that where a grant is made by Us for the construction of public buildings,
the rule must be observed that no house shall be demolished, under
the pretext of the erection of a building, whose value is estimated
at more than fifty pounds of silver; and where the houses are worth
more than that sum, We must be applied to, and the Imperial authority
exerted, if a larger amount is demanded. Given at Constantinople,
on the third of the Kalends of March, during the Consulate
of Theodosius, Consul for the third time, and Abundantius, 393. 10. The Same Emperors
to Rufinus, Praetorian Prefect. Judges shall be considered
guilty of high treason who cause their names to be inscribed upon
buildings erected at the public expense, without mentioning that of
the Emperor. Given on the third
of the Nones of July, during the Consulate of Arcadius, Consul
for the third time, and Honorius, Consul for the second time, 394. 11. The Emperors
Arcadius and Honorius to Eusebius, Count of the Sacred Largesses. In order that Our magnificent
cities and towns may not become ruined through the effect of age,
We hereby set aside the third part of the income from the public lands
for the repair of public buildings and baths. Given at Milan, on
the eleventh of the Kalends of July, during the Consulate of
Olybrius and Probinus, 395. 12. The Same Emperors
to Caesarius, Praetorian Prefect. All Governors of provinces
are hereby notified that the inhabitants of cities, without distinction
of rank, are obliged to contribute to the construction of new city
walls, or the repair of the old ones, and that the expense of the
same must be distributed so that the allotment of each will be in
accordance with his means, and the real property of the citizens be
taxed in proportion to the estimate of the structure to be erected,
so that no more may be demanded than necessity requires, and no less,
for fear construction may be prevented. This tax must also be equally
imposed upon lands which yield a revenue, and everyone shall be compelled
to pay his share of the expense, and no excuse shall be accepted,
and no immunity from contribution granted under any pretext whatsoever. Given on the eighth
of the Kalends of April, during the Consulate of Arcadius,
Consul for the fourth time, and Honorius, Consul for the third time,
396. 13. The Same Emperors
to Theodore, Praetorian Prefect. No judge shall be so
rash as to presume to erect a new building without Our authority,
or remove from different edifices any ornaments, marbles, or other
materials which are proved to have been for the use and adornment
of the City, and transport them somewhere else without the order of
Your Highness, for if anyone should do so in violation of this law,
he shall be fined six pounds of gold. Municipal
magistrates shall be liable to the same sentence if, relying upon
this Decree, they do not protect the ornaments of their birthplace.
Judges, however, can, by their own authority, erect warehouses or
stables by way of manifesting their laudable devotion to Us. Given at Milan, on
the third of the Kalends of January, during the Consulate of
Honorius, Consul for the fourth time, and Eutychianus, 398. 14. The Same Emperors
to Severus, Prefect of the City. We order that the buildings
commonly called parapetasia, or others which are attached to
the walls of cities, or to public buildings, and on account of whose
condition the neighborhood is threatened with fire or some other danger,
or which occupy the space of public squares, or interfere with the
porticos of public edifices, shall be demolished and destroyed. Given at Constantinople,
on the fifth of the Ides of October, during the Consulate of
Honorius, Consul for the fourth time, and Eutychianus, 398. 15. The Same Emperors
to Eutychianus, Praetorian Prefect. If, at any time, certain
men should appear and request Us to grant them the use of a public
building, and a rescript is granted to that effect, they shall not
be allowed the use of said building unless it is ruinate,
almost destroyed, and of very little value to the city, after the
rescript has been presented to Your Highness and you have ascertained
that this is the fact. Given on the Ides
of December, during the Consulate of Honorius, Consul for the
fourth time, and Eutychianus, 398. 16. The Same Emperors
to Aemilianus, Praetorian Prefect. When, either on account
of age, or because of some accident, necessity demands that a portico
or some other public building should be repaired, it shall be permitted,
even without consulting the Emperor, to remove with all due reverence
either his statue or those of former sovereigns, provided that, after
the building has been repaired, they are returned to their proper
places. Given at Constantinople,
on the fifth of the Kalends of July, during the Consulate of
Arcadius, Consul for the sixth time, and Probus, 406. 17. The Emperors
Honorius and Theodosius to Monaxius, Praetorian Prefect. Any place within the
precincts of Our Palace, in this city, which is occupied by private
buildings to the inconvenience of the former, shall be immediately
demolished, as it is not proper for the Palace to be confined by the
walls of private residences, for the home of the Emperor should be
separate from those of all other persons; and they alone shall have
the right to live near the Palace who have lawfully been granted this
privilege by the Emperor, or who are required to do so by their public
duties; and, for the future, all persons are hereby prohibited from
any encroachment of this description. Given at Constantinople,
on the ninth of the Kalends of March, during the Consulate
of Honorius, Consul for the eighth time, and Theodosius, Consul for
the third time, 409. 18. The Same Emperors
to Anthemius, Praetorian Prefect. We order that the towers
of the new wall, which was built for the protection of this magnificent
City, shall, after the work has been completed, be set apart for the
use of those on whose land the said wall has been erected by your
care and foresight, and with Our consent. This privilege is granted
to them forever by the terms of this law, but under the condition
that every year those who have surrendered their rights to said land
shall make the necessary repairs at their own expense, and while they
enjoy the use and benefit of public property, they must not forget
that the care and responsibility for said repairs are part of their
duty. In this manner the splendor of the work and the defence of the
city will be connected with the utility and advantage of private individuals,
and both will be preserved. Given on the second
of the Nones of April, during the Consulate of Lucius, 413. 19. The Same Emperors
to Severinus, Praetorian Prefect. For the reason that
several houses, with their workshops, are said to have been erected
in the porticos of Zeuxippus, We order that, without
any exception, the rents of the aforesaid buildings shall be appropriated
proportionally for the construction of new windows, as well as for
the repair of the roofs, and the maintenance of the baths of this
Imperial City. Given on the fifth
of the Ides of January, during the Consulate of Victor, 424. 20. The Emperors
Theodosius and Valentinian to Cyrus, Prefect of the City. We order those persons
who, without the authority of an Imperial Rescript communicated to
them by Your Highness, have included entire ends of streets or portions
of the same in their houses, or have appropriated porticos, to return
to the public use of the city what they have in this way taken for
their own use, and if anyone should hereafter be guilty of such audacity,
he shall be liable to a fine of fifty pounds of gold. Given on the Kalends
of November, during the Consulate of Theodosius, Consul for the
seventeenth time, and Festus, 439. 21. The Same Emperors
to Cyrus, Praetorian Prefect. We order that the Basilica,
which has been embellished with gold and marble, shall remain intact
for all time, and that its ornamentation shall not be obscured by
the introduction of the statue of anyone, nor by paintings placed
there in anyone's honor; and We decree that, in no part of said Basilica,
shall any assembly be held, or any banquet be given; and We also decree
that no one shall be permitted to introduce horses, or celebrate marriages
therein. Given at Constantinople,
on the eleventh of the Kalends of February, during the Consulate
of Valentinian, Consul for the fifth time, and Anatolius, 440. 22. The Emperor
Leo to Erythrius. No judge shall be allowed
to construct a new building either in this renowned City, or in any
of the provinces, before those which one or more of his predecessors
may have left unfinished, or which have been demolished on account
of age, or abandoned through neglect, have been completed by his diligence
and industry, for just as much distinction is acquired by repairing
buildings which are old, and require to be rebuilt, and in finishing
those which have been begun by others but left imperfect, as in erecting
new ones. Given at Constantinople, on the second of the Kalends of March, during the Consulate of Martian and Zeno, 448. Title
13. Concerning the contractors of public works and the Senators of
cities. We order that the Governors of provinces and the illustrious judges of different districts, that is to say, the Augustal Prefect, the Count of the East, and all Proconsuls and Vicegerents, together with those composing their retinues shall, in conformity with the tenor of the general regulations established by Your Highness, refrain from interfering with any public works or aqueducts which either have been constructed at the public expense, or by the voluntary munificence of anyone, or which may hereafter be constructed; nor shall they, in any way or at any time, claim for themselves a single siliqua of the solidi out of the amount to be expended in handling the public revenues, whether the work has been completed or is to be undertaken hereafter; nor shall they acquire for themselves any gain, for they have no concern in matters of this kind, as the municipal bodies are charged with them when they are placed under their supervision. Any persons, however, who promise to erect a public building at their own expense, shall not be required by law to do the work, even though it was certain that it depended upon a promise or a contract alone; and We decree that their heirs shall not, in any way, or at any time, be subjected to annoyance, or be compelled to render an account of the work performed, or that any controversy shall be raised on the ground that the entire amount of money promised has not been expended on the work, or that it was done in such a way as to be useless, or under any other pretext whatsoever. If the illustrious Governor of the province or his subordinates should, in opposition to what has been prescribed, violate the provisions of this Our most sacred law by interfering with the expenditure of the public revenues on any public work, or by claiming a single siliqua or any other sum whatsoever out of the said revenues, or on account of the works above mentioned, the five principal officers of his retinue shall be condemned to perpetual exile, and their property shall be confiscated to the city which they have injured, and the Governor of the province himself shall be fined fifty pounds of gold. The distinguished judges, also (even though they may have been decorated with the highest honors), as well as their subordinates (as above stated), shall be liable to the same penalties. Title
14. Concerning pledges and hypothecations. A debtor who alleges
that he has transferred to his creditors the property which he pledged
to them is by no means released from liability. Published on the fifth
of the Kalends of March, during the Consulate of Severus, Consul
for the second time, and Albinus, 195. 2. The Same Emperors
to Lucius. Although it is established
that your adversary received certain property specially, by way of
pledge, and that the remainder has been pledged to him in general
terms and hence he has an equal right to all of it, the strictness of the rule should,
nevertheless, be relaxed. Therefore, if it is certain that he can
collect the entire debt from the sale of the property which was specifically
pledged to him, the Governor of the province will order that you shall
not be deprived of that portion of the same property which was subsequently
encumbered. Published on the second
of the Kalends of June, during the Consulate of Chilo and Libo,
205. 3. The Same Emperors
to Maximus. Creditors, who have
made an agreement with their debtors that if the money due is not
paid to them at the designated time they may take possession of their
property, are not considered to have used violence if they do so,
but they should, nevertheless, obtain possession by authority of the
Governor. Published on the Kalends
of May, during the second Consulate of Antoninus and Geta, 206. 4. The Same Emperors
to Bellius. As you acknowledge
that you have received the money and hypothecated your lands, you
have no reason to complain that you have been compelled to encumber
them; therefore, if you wish to recover your property, pay your creditor
the money which you owe him. Given on the third
of the Kalends of June, during the third Consulate of Antoninus
and Geta, 209. 5. The Emperor Antoninus
to Domitius. The illustrious Governor
of the province will hear you when you apply to him for the enforcement
of your right to the property pledged to you, and it will not be prejudiced
by the judgment rendered against your debtor if it should be proved
that he acted in collusion with your adversary, or (as you allege)
the case was not heard, but that your debtor was defeated by the proof
of prescription. Published at Rome,
on the Ides of March, under the Consulate of the two Aspers,
213. 6. The Same to Quintus. In calculating the
amount of a debt, that also is computed which has been paid out of
the property pledged for the repair of highways, or anything else
which it is proved that the creditor was obliged to disburse. Published on the third
of the Kalends of August, during the Consulate of Antoninus,
Consul for the fourth time, and Balbinus, 214. 7. The Emperor Gordian
to Martianus. The usucaption of a
pledge does not annul the agreement made with the creditor. Published on the Nones
of September, during the Consulate of Pius and Pontianus, 234. 8. The Same Emperor
to Festus. Although you have obtained
a judgment in a personal action which is brought either against the
principal debtor, his sureties, or his mandators, you will, nevertheless,
still retain the right to the property pledged. Published on the Ides
of March, during the Consulate of Gordian and Aviola, 240. 9. The Same Emperor
to Atticus. If the ownership of
the property which has been given in pledge has been transferred to
you by the woman who owned it, and afterwards the creditor, or his
heirs, attempt to hold said property, claim it before the Governor
of the province, who will see that possession is restored to you,
under the condition that you pay the balance due after the crops obtained
by the creditor has been deducted. Published on the third
of the Kalends of October, during the Consulate of Gordian
and Aviola, 240. 10. The Emperors
Diocletian and Maximian, and the Caesars, to Alexander. When debtors are present,
notice should first be served upon them; therefore, if, after having
been notified, they do not pay the debt, you can have recourse to
the pledge, or the property which has been hypothecated, and which
you state has been specifically described in a certain instrument,
and the Governor of the province will not hesitate to afford you his
assistance by means of the actions to which you are entitled. Given on the fourteenth
of the Kalends of February, during the Consulate of Diocletian,
Consul for the fourth time, and Maximian, Consul for the third time,
290. 11. The Same Emperors
and Caesars to Euphrosinus. It is not lawful for
the property of anyone appointed to an office to be pledged to the
person who appointed him, without the authority of the Governor. Ordered on the third
of the Ides of March, during the Consulate of the above-mentioned
Emperors. 12. The Same Emperors
and Caesars to Eusebius. If your deceased wife,
having borrowed money, pledged her own property, and you became her
heir, although it may not have been provided by the instrument evidencing
the obligation that, after the debt was paid you could sue the creditor,
still, if this was done, you have a right to bring suit and compel
him to return to you the articles that were pledged. Ordered on the fifth
of the Kalends of April, during the Consulate of the above-mentioned
Emperors. 13. The Same Emperors and Caesars to Matrona. As you state in your
petition that the property pledged has been transferred to you and
given in payment of the debt by your mistress, who
was over the age of twenty-five years, the contract and the will of
your debtor will be sufficient confirmation of your ownership. Ordered at Heraclia,
on the third of the Kalends of May, under the Consulate of
the above-mentioned Emperors. 14. The Same Emperors
and Caesars to Apianus. When pledges are sold
by the debtor, it is a positive rule of law that the creditors have
power to bring a personal action against him, or one in rem, against
those who are in possession of the pledges. Ordered at Heraclia,
on the Kalends of May, during the Consulship of the above-mentioned
Emperors. 15. The Same Emperors
and Caesars to Basilida. It is certain that
a debtor cannot prejudice the rights of a creditor by either selling,
donating, bequeathing, or leaving under a trust the property pledged,
and therefore if you can prove that it was pledged to you, you can
assert your right to the same. Ordered at Heraclia,
on the fifth of the Nones of May, during the Consulate of the
above-mentioned Emperors. 16. The Same Emperors
and Caesars to Heroidus. Although your brother
did not lend his own money, but lent yours in his name, and received
a pledge as security, he could not acquire any right to the article
pledged. Signed at Adrianople,
on the third of the Ides of May, during the Consulate of the
above-mentioned Emperors. 17. The Same Emperors
and Caesars to Pontia. Even though your brother
purchased land with the money which you lent him, still, if he did
not hypothecate the said land to you either specifically or in general
terms, the payment of your money is not secured by the pledge of the
land, but you will not be prevented from bringing a personal action
before the Governor of the province to collect the debt. Ordered on the twelfth
of the Kalends of June, during the Consulate of the above-mentioned
Emperors. 18. The Same Emperors
and Caesars to Evodius. Legal proceedings instituted
on account of pledges or hypothecations are in rem. Ordered at Sirmium,
on the Kalends of December, during the Consulate of the above-mentioned
Emperors. 19. The Same Emperors
and Caesars to Maximus. As a creditor is not
responsible for pledges where irresistible force is employed, so he
is required to use ordinary diligence with reference to such property,
and is responsible for both fraud and negligence. Given on the seventeenth
of the Kalends of January, during the Consulate of the above-mentioned
Emperors. 20. The Same Emperors
and Caesars to Alexander. A creditor can, by
no means, legally be compelled to demand the payment of his claims,
but if you tendered what you alleged that you owed to the heirs of
Evodianus, and they refused to accept it, you should seal it up and
deposit it, and then you can bring suit before the Governor for the
purpose of forcing them to return the property pledged. Published on the seventeenth
of the Kalends of February, during the
Consulate of the above-mentioned Emperors. 21. The Same Emperors
and Caesars to Vietus. Where a third party,
by payment of the debt, releases property which has been hypothecated,
he can demand the amount that he paid, but he cannot acquire the ownership
of said property. Given on the third
of the Kalends of November, during the Consulate of the Caesars. 22. The Same Emperors
and Caesars to Antiochianus. A second creditor,
by paying the prior creditor his debt, acquires for himself the right
to the property pledged, and is entitled to receive from the debtor
both the principal and interest which he paid, but he cannot collect
compound interest. Published at Nicomedia,
on the third of the Ides of December, during the Consulate
of the Caesars. 23. The Same Emperors
and Caesars to Macedonianus. Anyone over twenty-five
years of age cannot claim pledges the right to which he has relinquished,
as the agreement alone which he entered into, as well as the law which
considers his intention, will prevent him from doing so. Ordered at Nicomedia,
on the eighteenth of the Kalends of January, under the Consulate
of the Caesars. 24. The Same Emperors
and Caesars to Marcus. A creditor cannot be
compelled to bring a personal action against his debtors if he has
neglected to bring one of pledge. Ordered at Nicomedia,
on the fifteenth of the Kalends of January, during the Consulate
of the Caesars. 25. The Same Emperors
and Caesars to Dracontius. Even though the slave
who was pledged may have died, the right to payment of the debt remains
unimpaired. Given at Nicomedia,
on the sixth of the Kalends of January, during the Consulate
of the Caesars. 26. The Same Emperors
and Caesars to Mauritius. If your debtor pledged
to you his secretary, who is a slave, sue him by whom you allege that
the slave was removed, before the Governor of the province. Signed at Sirmium,
on the fourth of the Kalends of January, under the Consulate
of the Caesars. 27. The Emperor
Justinian to Menna, Praetorian Prefect. We, for the purpose
of permanently remedying all the abuses which have arisen with reference
to the hypothecation of property, which money-brokers, bankers, or
business men of every other description practice against those who
lend them money, do hereby order that if, having made a contract of
this kind, they should acquire for their children, or for any of their
relatives some office which can be sold, or transmitted to heirs under
certain conditions, even if it is not established that the money by
which the children were benefited came from the said creditors, or
that the relatives obtained the office purchased (for it is sufficient
that the contrary should not be proved, namely, that others have furnished
the money out of their own estates), the creditors shall have the
right to collect the entire debt from those who have possession of
the said office, or to exact from them as much as the office can be
sold for. We order that
this rule shall apply, even if it is proved that the said merchants
obtained the offices for strangers by the payment of their creditor's
money, so that as, generally speaking, debtors themselves are permitted
to sell the offices or transmit them to their heirs, creditors also,
who can claim the offices aforesaid by the right of hypothecation,
shall be allowed to sell them, even during the lifetime of the debtors,
unless their debts are paid; and after their death they can collect
from the incumbents of the offices the payment of their claims according
to the average value of the same, or the appraisement made when they
were bestowed by the Emperor. This
rule shall be observed for the protection of creditors as against
merchants personally, although those who hold the offices may, under
no circumstances, be liable for the indebtedness. We order that this
law shall in the future apply to offices obtained not only when bankers
or merchants have acquired them for their children or other relatives,
but also for strangers, by the
payment of money belonging to their creditors. Given on the Kalends of June, during the Second Consulate of Our Lord the Emperor Justinian, 526. Title
15. Concerning cases in which property is tacitly pledged or hypothecated. The entire property
of those who are liable to the payment of taxes is encumbered by pledge
to secure the collection of the same. 2. The Same Emperor
to Proculus. It is certain that
the property of him who makes a contract with the Treasury is encumbered,
as by a pledge, although this may not have been expressly provided. Given on the sixth
of the Kalends of March, during the Consulate of Messala and
Sabinus, 215. 3. Extract from
a Rescript of the Emperor Alexander Addressed to Demosthenes. Although the income
of land given in pledge (even where this has not been explicitly stated)
is, by tacit agreement, included in the property encumbered, still,
land which has been purchased with the proceeds of the crops is considered
by no jurist to be embraced in this category. Published during the
Ides of October, during the Consulate of Maximus, Consul for
the second time, and Aelianus, 224. 4. The Emperor Carus,
Carinus, and Numerianus to Africanus. It is well enough known,
and sufficiently based upon reason, that property given by way of
dowry to women who marry Chief Centurions of the Triarii is liable
for the indebtedness incurred during the administration of the latter.
This, however, is true with certain restrictions, as the woman does
not become liable, except where the entire property of the Centurion
and of those who appointed him, having been exhausted, nothing is
found to remain. Given on the fifth
of the Ides of August, during the Consulate of Carus and Carinus,
285. 5. The Emperors
Diocletian and Maximum, and the Caesars, to Corinthia. If it is shown that
the slaves in question were not transferred with the property which
it was decided was encumbered, and that they were not specially pledged
for the payment of the debt, the Governor of the province will order
them to be returned. Nor can their restitution be delayed under the
pretext that rent is due, since, if the woman who was the owner of
the property can prove that there is anything due to her as rent,
or for any other reason, it is proper for her to exact payment by
law. Ordered on the twelfth
of the Kalends of February, during the Consulate of the Caesars. 6. The Emperors
Theodosius and Valentinian to Florentius, Praetorian Prefect. When a mother who has
obtained the legal guardianship of her children contracts a second
marriage in violation of the oath which she took before causing another
guardian to be appointed for them, she shall pay to the said children
what is due to them under her administration of the guardianship,
and the property of her deceased husband, as well as her own, will
be considered as pledged for the discharge of any indebtedness contracted
by her during her administration of the guardianship. Given on the sixth
of the Ides of . . . , during the Consulate of Theodosius,
Consul for the seventeenth time, and Festus, 409. 7. The Emperor Justinian
to John, Praetorian Prefect. We order that the property
brought into a house by a tenant shall be tacitly pledged to the owner
for the rent, and this law shall apply not only to ancient and modern
Rome and their territory, but also to the provinces of Our Empire,
for We desire that all the inhabitants shall have the benefit of this
equitable presumption. Given on the fifteenth of the Kalends of November, after the fifth Consulate of Lampadius and Orestes, 532. Title
16. Where property belonging to another is pledged. The agent did not lawfully
pledge the house of his principal without the consent of the latter.
If, however, it is established that he employed the money of the creditor
for the benefit of the property of his principal, an exception can
be pleaded, if the former desires what has been loaned to be collected. Published on the eleventh
of the Kalends of November, during the Consulate of Severus,
Consul for the second time, and Albinus, 195. 2. The Same Emperors
to Latina. If you prove before
the Governor of the province that the fields or gardens in dispute
are yours, you understand that they cannot be hypothecated to a creditor
by another person, even though this was done without your knowledge,
unless you concealed your title to said property for the purpose of
defrauding the creditor. Published on the first
of the Ides of October, during the second Consulate of Antoninus
and Geta, 206. 3. The Emperors
Antoninus to Martia. Neither the curator
of an adult, nor the guardian of a minor, can legally pledge the movable
property of him whose affairs he administers, unless he borrows money
on what is pledged. Published on the fifth
of the Kalends of February, during the Consulate of the two
Aspers, 213. 4. The Emperor Alexander
to Secundus. Even if your son was
more than twenty-five years of age, if he was still under your control
he could not hypothecate any of your property against your consent. Published on the fifth
of the Kalends of November, during the Consulate of Maximus,
Consul for the second time, and Julianus, 224. 5. The Emperors
Diocletian and Maximian to Eutichius. As property which did
not yet belong to the debtor was pledged by him, and afterwards became
his own, it is clear that an ordinary action on pledge will not lie,
but equity requires that a praetorian action resembling that of pledge
should be granted. Published on the thirteenth
of the Kalends of June, during the Consulate of Maximus, Consul
for the second time, and Aquilinus, 286. 6. The Same Emperors
and Caesars to Zosimus. She who gave in pledge
to her creditor land which she had already transferred as a donation
to her children has rendered herself liable to the counteraction of
pledge, and could not injure the owners in any respect, as the Servian
Action plainly shows that property cannot be held by the right of
pledge unless it belongs to the person incurring the obligation, and
it is also perfectly certain that the property ol another cannot be
encumbered by anyone against the consent of the owner. Ordered at Philippopolis,
on the fifth of the Ides of July, during the Consulate of the
above-mentioned Emperors. 7. The Same Emperors
and Caesars to Cornelia. If your guardian gave
your slave in pledge to secure the payment of borrowed money employed
for his own use, and, after you attained your majority, you did not
give your consent to the transaction, the property will not be encumbered
as a pledge. Ordered on the sixth
of the Kalends of January, during the Consulate of the above-mentioned
Emperors. 8. The Emperors
Honorius and Theodosius to John, Praetorian Prefect. Land cannot be encumbered
except by someone who has the legal right to do so. Hence, in accordance
with justice, and by the authority of the laws it is stated that no
lien can, without the knowledge or consent of the owner, be placed
upon such property by a slave, an agent, a tenant, a steward, or a
lessee. Given at Ravenna, on the Ides of July, during the Consulate of Honorius, Consul for the thirteenth time, and Theodosius, Consul for the tenth time, 422. Title
17. What property when pledged can or cannot be rendered liable for a debt, and in what way a pledge is given. It is not reasonable
to suppose that your children by a concubine, and other effects which
usually are only pledged under a special agreement, constitute part
of property encumbered by a general contract including your possessions. Published on the twelfth
of the Kalends of April, during the Consulate of Lateranus
and Rufinus, 198. 2. The Same Emperors
to Rogatus. As it is settled that
the obligation of pledge is created by consent, We entertain no doubt
that he who pledged the agreements for the purchase of his lands intended
to hypothecate the lands themselves. Published on the fifth
of the Kalends of July, during the Consulate of Aper and Maximus,
208. 3. The Emperor Antoninus
to Restitutus. If you have placed
the body of your daughter in a tomb, you have made the tomb religious.
This having been done, there is no doubt that the tomb cannot be encumbered
by anyone, as the laws concerning religion forbid it. Published on the third
of the Kalends of April, during the Consulate of Laetus, Consul
for the second time, and Cerealis, 216. 4. The Emperor Alexander
to Evocatus. It was long since decided
that the claim of a debtor can be pledged either generally or specifically.
Therefore, if the debtor to whom you lent the money should not discharge
his obligation, he whose claim was given to you by way of pledge can
be compelled by equitable actions, unless he pays the person whom
he himself owes, and security has
not been furnished for the settlement of your obligation, to pay you
the amount that you can prove is due to you from his creditor, to
the extent that he himself is indebted. Published on the day
before the Kalends of March, during the Consulate of Fuscus,
Consul for the second time, and Dexter, 226. 5. The Same Emperor
to Septimius. To pledge, by a private
agreement, the prizes to be obtained in an athletic contest is, under
no circumstances, allowed, and therefore they are not considered included
even if a general contract for the pledge of all property should be
made. Published on the third
of the Kalends of May, during the Consulate of Maximus, Consul
for the second time, and Paternus, 234. 6. The Emperors
Diocletian and Maximian, and the Caesars, to Rufus. Anyone who received
either your children or persons who are free, by way of pledge for
the money which he lent you, deceives himself in attempting to evade
the law, as it is clear that the obligation of pledge was not contracted,
except with reference to such property as the debtor could legally
encumber. Ordered at Heraclia,
on the Kalends of May, under the Consulate of the above-mentioned
Emperors. 7. The Emperor Constantine
to all the Inhabitants of the Provinces. We order that the officers
appointed by any judge for the collection of debts which are the subject
of a civil action shall not remove from the possession of others any
slaves, oxen, or implements used for the cultivation of the soil,
on the ground that they have been pledged, by which act the payment
of taxes may be delayed. Therefore, if any agent, creditor, Prefect
of a district or village, or decurion, should be convicted of having
done this, he shall be subjected by a penalty to be determined by
the judge. Given at Sirmium, on
the third of the Nones of June, during the Consulate of Constantine
and Licinius, 312. 8. The Emperors
Honorius and Theodosius to Probus, Count of the Imperial Largesses. It is settled that
nothing which is used for the cultivation of the soil can be removed
under the pretext that it has been pledged. Given on the sixth
of the Ides of June, during the Consulate of Constans and Constantius,
414. 9. The Emperor Justinian
to Menna, Praetorian Prefect. If anyone should insert
the following words into the instrument evidencing a contract, namely,
"For the liability, and at the risk of the property which belongs
to me," or "I promise to pay you at the risk of my property,"
We decree that these words shall be sufficient for the hypothecation
of any property which the debtor has at the time, or may thereafter
acquire, notwithstanding that the terms of former laws do not seem
to apply to special hypothecation, as it is just rather to consider
the intention of the contracting parties than the meaning of their
words. With reference
to general hypothecations, and for the purpose of carrying out the
wishes of the contracting parties, We decree that even if the debtor
should not, when he encumbers his property, add, "The property
which I have at present, as well as that which I may acquire in the
future," the general right of hypothecation will include anything
that he may subsequently obtain. Given at Constantinople, on the third of the Ides of December, during the Consulate of Our Lord the Emperor Justinian, Consul for the second time, 538. Title
18. Who are preferred creditors when property is pledged. Anyone who receives
property in pledge which has already been encumbered in this way can
confirm his right by paying the prior creditor the money which is
due to him; or, if he should tender it, and the other should refuse
to accept it, he must seal it up, and deposit it, and not convert
it to his own use. Published on the Kalends
of February, during the Consulate of Lateranus and Rufinus, 198. 2. The Emperor Antoninus
to Chrestus and Others. If you were placed
in possession of land belonging to an estate for the purpose of preserving
the same, under a decree of the Praetor, who rendered a decision with
reference to the trust before your adversary obtained the said land
through hypothecation, by virtue of a judgment, you become preferred
creditors by the decree of the Praetor who gave the decision in your
favor; and where several parties claim the property because of a pledge,
he who is first in order shall be preferred by law. Published on the fifth
of the Ides of May, during the Consulate of the two Aspers,
213. 3. The Same Emperor
to Varus. If you receive a tract
of land in pledge before it was encumbered to the State, as you were
first in time, so you will be preferred by law. Published on the fifth
of the Ides of October, during the Consulate of Antoninus,
Consul for the fourth time, and Balbinus, 213. 4. The Same Emperor
to Sylvanus. As you allege that
the municipality of the Heliopolitans has, under the terms of the
decree, been placed in possession not only of the private property
of the heir but also of that belonging to the estate, you understand
that although your father made a contract with Sosianus, still, if
the city had the right to bring a personal action against him, it
should be preferred under the law of pledge, so far as any property
which it seized to protect a judgment rendered by a magistrate is
concerned. Published on the second
of the Ides of December, during the Consulate of Lsetus, Consul
for the second time, and Cerealis, 216. 5. The Emperor Alexander
to Septimius. The prior creditor
cannot be compelled to discharge your debt, as you took a pledge on
the property after he did, but if you pay him all that is due to him,
you will have the exclusive right to the pledge. Published on the third
of the Kalends of May, during the Consulate of Maximus, Consul
for the second time, and Paternus, 234. 6. The Same Emperors
Valerian and Gallienus to Philoxenus. When property is encumbered
in general terms and is afterwards specifically pledged to another,
as the creditor who made the first contract has the prior lien by
virtue of the general obligation, if you purchased the property before
the second pledge was given, you cannot be molested by him who made
the subsequent loan. Published on the second
of the Ides of May, during the Consulate of Secularis, Consul
for the second time, and Donatus, 261. 7. The Emperors
Diocletian and Maximian, and the Caesars, to Julianus. Although the same pledges
may have been given to several creditors at different times, and those
who are first in point of time are entitled to the preference, still,
he who proves that the land in question was purchased with his money
is declared by the law to be preferred to all others, for the reason
that it is settled that the land was especially encumbered to him
by the pledge. Published on the sixteenth
of the Kalends of February, during the Consulate of the above-mentioned
Emperors. 8. The Same Emperors
and Caesars to Fabricius. It is a clear and positive
rule of law that where the same property has been pledged at different
times to two different persons, he who first received the pledge for
the money lent shall be preferred, and that the second creditor cannot
obtain authority to sell the pledge before the amount due to the prior
creditor has been paid. Ordered at Heraclia,
on the day before the Kalends of May, during the Consulate
of the above-mentioned Emperors. 9. The Same Emperors
and Caesars to Asclepiodotus. As those who have received
pledges are entitled to a real action, it is established that they
should be preferred to all those in whose favor personal actions will
lie. Given on the third
of the Nones of December, during the Consulate of the Caesars,
293. 10. The Same Emperors
and Caesars to Pollipeuca. As your husband encumbered
the property which he received from you as dowry, and then died, those
to whom he pledged it can, under no circumstances, assert their claims
before tendering the amount which is due, for it is clear that creditors
whose obligations have been reduced to writing cannot bring either
real or personal actions against those who are not proved to have
succeeded the debtor. Published on the Nones
of December, during the Consulate of the Caesars, 293. 11. The Emperor
Leo to Erythrius, Praetorian Prefect. We order that those
written instruments which are often secretly made by certain persons,
in the presence of their friends, for the purpose of sale, compromise,
contract, the loan of money at interest, partnership, or for any other
reason, and any other agreements whatsoever, called in Greek idiochira,
whether they were entirely written by the hands of the contracting
parties or have been drawn up by a notary or any other person whomsoever,
whether they bear the signatures of the contracting parties or not,
or whether witnesses were called to attest them or not, or whether
they are conditional or not, that is, such as are commonly reduced
to writing, they shall be considered as having been publicly executed;
and if any personal action based on them should be brought, it shall
have full force and effect. (1) If, however, anyone
should claim for himself the right of pledge or hypothecation, by
virtue of any instrument of this description, We order that he who
founds his demand upon a document publicly executed shall be preferred,
even if he comes after another in point of time, unless the privately
executed instrument of the prior creditor
bears the signature of three witnesses, all of approved and honorable
reputation, for, in this instance, the document shall be considered
to have been publicly executed. Given on the Kalends
of July, during the Consulate of Martianus and Zeno, 469. 12. The Emperor
Justinian to John, Praetorian Prefect. We are continually
annoyed by the persistent applications of women who complain that
they have lost their dowries, for the reason that the property of
their husbands has been seized by creditors whose claims are prior
to their own. Hence, We have examined the ancient laws, and, with
reference to personal actions, find that the Actio rei uxorise
which We have abolished was granted by them to the wife, and that
they conferred the great privilege of precedence over all other personal
actions, as well as over other creditors, even though the claims of
the latter were prior in point of time. And, while this related to
personal actions, when these laws came to discuss the hypothecary
action, they at once relax the severity of justice, and exclude the
recent hypothecations of women, if they had any rights of action,
in favor of creditors who held prior ones, without having any regard
to the weakness of the sex, and that husbands made use of their bodies,
property, and all their lives, since almost the entire fortune of
a woman is included in her dowry. It was proper to decree that husbands should satisfy
their creditors out of their own property, and not out of the dowries
of their wives, as a woman possesses the dowry for the purpose of
her subsistence, whether it was given by herself, or by someone else
for her benefit. (1) After having carefully
examined and considered all these matters, as well as the other two
Constitutions which We have promulgated concerning dowries, We, for
the purpose of coming to the relief of women, and to consolidate all
these rules into one, do hereby decree an action on the ground of stipulation which We have already granted
to women with reference to their dowries, and in favor of whom We
have permitted a tacit hypothecation on the property of their husbands,
as well as the preference over all other creditors of the former,
even though the said creditors may enjoy the advantage of priority
of time. For, as the Actio rei uxoriss enjoyed this privilege
in case of personal actions (as We have already stated) for this reason,
We now grant the wife this advantage, even where no hypothecation
has taken place, although the dotal property, or any other which has
been purchased with it, may not be in existence, or has been wasted
or consumed in some way or other, provided it was actually given to
the husband. For who does not pity those who have had to bury their
husbands, and who may incur the risk of childbirth and the rearing
of their children, on account of which things many privileges have
been bestowed by Our laws? Therefore,
what the ancients began but did not carry to completion We have fully
consummated; and We grant this privilege to a woman, whether she has
children, did not have them in the first place, or has lost them.
Children born of a former marriage are, however, excepted, and are
preferred to their stepmothers, and We grant them a tacit hypothecation
against the estate of their father, as well as against his creditors
on account of their mother's dowry, and We confer the same privilege
upon them by the present law, so that what was conceded to the second
wife may not be refused to the first, but the rights of both remain
unimpaired, just as if the mother of the children were still living.
Where two dowries are due from the same estate, We desire that the
one which is first in point of time shall be preferred to the other. (2) We order that these
rules shall only apply to a dowry, and not to an ante-nuptial donation,
which We decree shall preserve its order of priority, and be in this
way regulated among creditors, for We do not favor women for the sake
of gain, but only take care that they shall suffer no loss, and be
defrauded of their property. (3) We decree that
this law shall only take effect from the present time and shall not
be retroactive. Given at Constantinople, on the fifth of the Kalends of December, after the fifth Consulate of Lampadius and Orestes, 531. Title
19. Concerning those who succeed to the places of prior creditors. Those who satisfy the
creditor of another, whose debt is secured by hypothecation, do not,
merely by the payment of money, take his place; for, in order that
this may be done, he who subsequently discharges the obligation must
do so under the agreement that the same property will be pledged to
him, and that he will succeed to the rights of the creditor. As this
was not done by you (for it has been decided in court that you did
not receive the pledges) it is useless for you to think that you are
entitled to the benefit of Our Constitution which has reference to
cases of this kind. Published on the Ides
of July, during the Consulate of Pompeianus and Abvitus, 210. 2. The Emperor Antoninus
to Felix. As you paid money to
the Treasury for your father, at a time when you were not under his.control,
and by so doing have succeeded to the rights of the Treasury, and
have taken the place of the creditor to whom you have the money, your
father's creditors, not only those in favor of whom a personal action
will lie, but also those who afterwards made a contract with him secured
by pledges, cannot prejudice your rights in any way by selling the
pledges without your knowledge. Therefore you understand that if anything was
paid by your agents in your name, during your absence, this should
be returned to you as money which was not due, and you can institute
proceedings to recover the pledges to which you are entitled. Published at Rome,
on the Kalends of October, during the Consulate of Sabinus,
Consul for the second time, and Anulinus, 217. 3. The Emperor Alexander
to Valens. If the preferred creditors,
in whose favor the possession of the property was encumbered, which
property you say you purchased with the understanding that the price
would come into their hands, have been paid with your money, you will
succeed to their rights, and you have a good defence against those
whose claims are of more recent date than theirs. Published on the Kalends
of February, during the Consulate of Julian, Consul for the second
time, and Crispinus, 225. 4. The Emperors
Diocletian and Maximian to Carpophorus. If the State has the
prior lien upon the land, you, as the creditor second in point of
time, by tendering the money due will succeed to the rights of the
State. Published on the fifteenth of the Kalends of June, during the Consulate of Maximus, Consul for the second time, and Aquilinus, 285. Title
20. Where a prior creditor sells the property pledged. If the creditor who
first received the pledge should sell it, you will not be entitled
to the hypothecary action for its recovery; but if the debtor gave
the said pledge to the prior creditor in payment of the debt, or sold
it to him, you will not be deprived of the right to recover it any
more than if he had sold it to a third party. You
understand that you can only assert your right to the encumbered property
if you tender to the person who holds possession of the same what
is due to him under the terms of a contract which was made before
yours. Published on the Ides
of May, during the Consulate of Agricola and Clementinus, 231. 2. The Emperors
Diocletian and Maximian, and the Caesars, to Eudemia. Where property has
been pledged according to law, and the creditor makes a legitimate
sale of the same, the debtor by afterwards offering to refund the
price to the purchaser, or by tendering the amount of the debt to
the creditor, cannot evict the possessor of the property. Given on the sixth
of the Kalends of April, during the Consulate of the Caesars. 3. The Same Emperors
and Caesars to Theophilus. If the second creditor
does not tender the amount of the debt to the first, he cannot prevent
him from selling the property pledged. Given on the sixth of the Kalends of April, during the Consulate of the Caesars. Title
21. Where property owned in common is pledged. As your brother could
not encumber the share of the property which belongs to you, without
your consent, so, by giving an obligation, he has only hypothecated
his own share to the creditor, therefore you understand that his contract
can, in no way, prejudice your ownership. Adopted on the third of the Kalends of December, during the Consulate of Messala and Sabinus, 215. Title
22. Concerning the Praetorian pledge and its application even to the
actions of debtors. If any judges should
be of the opinion that the right of Praetorian pledge should be granted
to someone, not only with reference to movable or immovable property,
and such as is capable of moving itself, but also with regard to actions
to which the debtor is entitled, We decree that they shall render
judgment permitting this to be done. Given at Constantinople,
on the Kalends of April, during the fifth Consulate
of Decius, 529. 2. The Same Emperor
to Julian, Praetorian Prefect. With the intention
of disposing of the doubts raised under the ancient laws, We have
considered the two kinds of hypothecation, one arising from the contracts
and agreements of men, and the other sanctioned by judges, and designated
Praetorian. And, as We have found in agreements made with reference
to pledges or hypothecations that relief is not only ordinarily granted
to the creditor in possession, but also, when he is deprived of the
property pledged, whether by his own fault, or not, or through accident,
We have thought it to be more humane to assist the creditor by means
of the Praetorian pledge, no matter how he may have lost possession
of the property, whether by his own fault or not, or accidentally.
For even though he ought to take such care of his pledge that it may
not suffer any damage, still, in order not to deal harshly with creditors,
We incline to a liberal interpretation of the law, and grant them
the right of recovery. Given at Constantinople, on the Kalends of August, during the fifth Consulate of Lampadius and Orestes, 530. Title
23. Where property is seized in pursuance of a judgment. It has frequently been
stated in rescripts, that property taken in execution under a judgment
by order of a magistrate who had the right to issue it can be held
as a pledge and be sold, for the authority of the judge who issues
the order takes the place of a legal obligation based upon a contract. Published at Rome,
on the fifth of the Kalends of August, during the Consulate
of Antoninus, Consul for the fourth time, and Balbinus, 214. 2. The Emperor Alexander
to Valerian. When property is seized
as a pledge under a judgment, it is usually sold officially by the
judge who rendered the decree, and not by him who
asked that the order should be issued. If another purchaser should
not appear, or if one does appear, but should not offer a reasonable
price, he in whose favor the judgment was rendered shall be permitted
to bid on the property, according to law, and purchase it, just as
anyone else can do. Published on the sixth
of the Kalends of May, during the Consulate of Maximus, Consul
for the second time, and Aelianus, 224. 3. The Emperor Gordian
to Antigonus. It is more customary
for pledges seized under a judgment by the Governor of the province
to be sold than to be taken possession of by the right of ownership.
Where, however, a purchaser cannot be found on account of the machinations
of the party against whom judgment was rendered, then the ownership
of the property is usually granted to the creditor by authority of
the Emperor. Published on the Ides of August, during the Consulate of Gordian and Aviola, 240. Title
24. Where property is pledged a second time. It has already been
decided that where property has been already pledged, it can be repledged
by the creditor, and the result is that an equitable action should
be granted to the subsequent creditor, provided he who has the right
to the pledge is protected as long as it remains subject to the lien
of him who encumbered it a second time. Where,
however, you have only pledged the usufruct of land and he who received
it pledged the land itself, the usufruct of which alone he was entitled
to without your consent, his creditor, by selling what was not liable
to encumbrance, cannot deprive you of the ownership of the same. But
when it was not the usufruct, but the land itself which was pledged
to your creditor, and, before the debt was paid by the owner, the
second creditor sold the property, the sale cannot be rescinded after
the money has been paid, as this rule has been established by the
Imperial Decrees. Published on the Ides
of September, during the Consulate of Pius and Potnianus, 240. 2. The Emperors
Diocletian and Maximian to Gemellus. If the creditor did
not sell the land which was pledged by your parents, but himself encumbered
it to another creditor of his own, after the facts have been ascertained,
you can recover the said land by application to the Governor of the
province, after having paid the sum due to the creditor. Published on the thirteenth of the Kalends of January, during the Consulate of Diocletian, Consul for the fourth time, and Maximian, Consul for the third time, 290. Title
25. Concerning the offspring of property which has been pledged and
all other increase of the same. It was long since decided
that the issue of a female slave who has been pledged has the same
status as its mother. Published on the Ides
of May, during the Consulate of Agricola and Clementinus, 231. 2. The Emperors
Diocletian and Maximian to Annosus and Antoninus. As you gave certain
slaves in pledge to secure the payment of a sum of money which you
had borrowed, and you allege that the proceeds of the labor of said
slaves which the creditor obtained, or could have obtained, should
first be credited upon the interest, and afterwards upon the principal,
and the debt having been satisfied, if the creditor should refuse
to accept the balance due, it having been formally tendered and deposited
under seal, the Governor of the province will order the slaves to
be returned to you. Ordered on the fifth of the Kalends of January, during the Consulate of the above-mentioned Emperors. Title
26. Concerning the release of pledges. If you can prove before
the Governor of the province that you have been manumitted, and in
possession of your freedom, and that she to whom you state you were
given in pledge was aware of this fact, the-creditor will appear to
have consented to release the pledge, and, this being the case, it
is certain that you were legally manumitted, and you cannot again
be reduced to slavery by the heir of the creditor. Published on the twelfth
of the Kalends of May, during the second Consulate of Antoninus
and Geta. 2. The Same Emperors
to Maternus. If you can establish
that the land in question was bought by you, and that possession of
the same was delivered to you with the knowledge and consent of the
woman who alleges that it was encumbered in her favor by the vendor,
you can plead an exception against her, for the obligation of a pledge
is both contracted and released by consent. Published on the second
of the Ides of February, during the third Consulate
of Antoninus and Geta. 3. The Emperor Alexander
to Taurus. If your debtor, who
without your knowledge, or against your consent, encumbered all his
property to you to secure the payment of money
loaned by you to him, should subsequently enter into a contract with
the State, this does not prejudice your rights. Published on the third
of the Ides of April, during the Consulate of Albinus and Maximus. 4. The Emperor Gordian
to Aquilinus. As you state that you
purchased from your debtor certain property which was pledged to another,
and you made the purchase with the knowledge of the person holding
the pledge, and he released the same, the encumbrance of the pledge
disappeared with his consent. If no new arrangement was made by which
the obligation was renewed, the property cannot be claimed on the
ground that it is subject to a lien. Published on the eleventh
of the Kalends of May, during the Consulate of Gordian and
Aviola. 5. The Same Emperor
to Asclepiades. You are not even now
prevented from collecting the debt which you refer to, and which you
released by means of a contract which was void, and you can recover
the pledges in the ordinary way. Published on the sixth
of the Ides of September, during the Consulate of Gordian,
Consul for the second time, and Pompeianus. 6. The Emperors
Diocletian and Maximian to Argius. If, at the time when
the land was sold, creditors to whom it was encumbered had been notified
by publication, and being present, did not assert their rights, they
can be considered to have forfeited their claims to the property pledged. Published on the third
of the Ides of February, during the Consulate of Maximus, Consul
for the second time, and Aquilinus. 7. The Same Emperors
to Paulinus. It is evident that
if the creditor in whose favor the land was encumbered by your uncle,
which had been evidenced by an instrument in writing, should order
the said bond to be returned to your uncle, she will be considered
to have also relinquished her right to the pledge. Published on the fifth
of the Ides of September, during the Consulate of Diocletian,
Consul for the third time, and Maximian. 8. The Same Emperors
and Caesars to Apollonius. If the Treasury sold
the property which was hypothecated, and the other creditors permitted
this to be done in silence, it is clear that they have lost the right
of action which they had in the property, for public sales made by
the Treasury should not readily be set aside. Published on the thirteenth
of the Kalends of September, during the Consulate of Diocletian,
Consul for the fourth time, and Maximian, Consul for the third time. 9. The Same Emperors and Caesars to Hermianus. As you allege that
you paid a sum of money bearing interest for your father-in-law in
an action on mandate, the Governor of the province
will provide for your indemnification by the restitution of the money
which you have paid for him, as well as the interest on the same;
for if, having received from the creditor the slaves which were pledged
for the debt, you delivered them to your father-in-law with the intention
that your lien on them should be released, the obligation having once
been extinguished, cannot be renewed. Published on the tenth
of the Kalends of October, during the Consulate of Diocletian,
Consul for the fourth time, and Maximian, Consul for the third time. 10. The Same Emperors
and Caesars to Quintilla. Debtors who, without
the consent of their creditors, alienate property which has been pledged
or hypothecated to the latter, do not thereby release the preceding
obligation. Given during the Kalends
of December, during the Consulate of the above-mentioned Emperors. 11. The Emperor
Jiistinian to John, Praetorian Prefect. We, employing Our customary
foresight, do hereby make provision with reference to the pledging
or hypothecation of property encumbered for the benefit of creditors,
and afterwards sold or disposed of in any other way by the debtors,
where the creditor has given his consent to the contract, and the
title to the property has again become legally vested in the former
owners. In cases of this kind, the opinions of the legal
authorities vary, some of them holding that the creditor is entitled
to have his right to the pledge renewed on account of the clause,
"Property which he may hereafter acquire," which is usually
inserted in general hypothecations ; and others think that his right
is entirely extinguished. It,
however, appears to Us that he who has once consented to the alienation
of hypothecated property, and in this manner has relinquished his
right, is not entitled to claim it afterwards, on the ground that
it had been encumbered to him in the beginning, or to molest the person
in possession of the same. Given at Constantinople, after the fifth Consulate of Lampadius and Orestes. Title
27. Pledges can even be held to secure the payment of money evidenced
by a written instrument. Your right to the pledge
is lost if, after a novation has been made, you have transferred the
right of encumbrance to another, and security has been given you that
the property will not be held by way of pledge. If an agreement was
made between you and the person who, having afterwards become the
owner of the land, assumed a new obligation, in order that the said
land might be held by you in pledge, although you have brought a personal
action and obtained a judgment, you still have a right to the property as being
encumbered. But if you were placed in possession, unless the money
due, which was not secured, was either paid or tendered to you by
your debtor, you will not be compelled to restore the property by
means of an exception on the ground of fraud. For you very properly assert that, if the debtors
only tender the money which they have given the said pledges to secure,
they should not be heard, unless they also pay the other which they
simply received as a loan. The rule does not apply to the second creditor,
for he is not obliged to tender to the first the amount of the debt
which is evidenced by a written instrument. Published on the Ides of March, during the Consulate of Gordian and Aviola. Title
28. Concerning the sale of pledges. A tract of land, which
has been pledged, can by no means be sold if the creditor has collected
the amount due out of the profits of the same, as the pledge is, under
such circumstances, released by operation of law. Published on the Ides
of January, during the Consulate of Maximus, Consul for the second
time, and Aelianus. 2. The Same Emperor
to Maxima. A creditor who has
alienated property which has been either hypothecated or pledged to
him is not considered to have sold the same subject to litigation,
because the debtor holds it by a precarious title. Published on the twelfth
of the Kalends of October, during the Consulate of Maximus,
Consul for the second time, and Julianus. 3. The Same Emperor
to Lucianus. An action will lie
against the principal debtor or his surety in favor of creditors who
have sold property which has been hypothecated or pledged to them
for the amount which is lacking to satisfy their claims. Published on the third of the Nones of November, during the Consulate of Maximus, Consul for the second time, and Aelianus. 4. The Same to Crescens. When a creditor is
about to sell property which has been hypothecated or pledged to him,
he should notify the debtor, and act in good faith, and when the sale
takes place he should make the announcement in the presence of a witness.
Therefore, if you can prove that fraud was committed in the sale of
the country seat in question, which was pledged, apply to the judge
having jurisdiction of such matters, in order
that the action to which you are entitled in a case of this kind may
be brought. Published on the Kalends
of June, during the Consulate of Fuscus and Dexter. 5. The Same Emperor
to Sossianus. If you are ready to
pay the balance of the debt, the Governor of the province will give
you the selection of the judge by whom the amount shall be ascertained,
and if the adverse party fails to appear in court, or proceeds to
sell the property after you have tendered him more than the sum to
which he is entitled, the fraudulent alienation will not affect your
right. 6. The Emperor Gordian
to Rogatus. So long as the amount
due is not paid in full to the creditor, he does not lose his right
to sell the property, even if he has already collected the greater
part of the debt. Published on the thirteenth
of the Kalends of September, during the Consulate of Pius and
Pontianus. 7. The Same Emperor
to Carus. If payment has not
been made, and the creditor should sell the property which had been
pledged to him when the contract does not contain any provision to
the contrary, it would be unjust to set the sale aside as if fraud
had been committed, and you should not sue the purchaser, but the
creditor. Published on the fifth
of the Kalends of November, during the Consulate of Pius and
Pontianus. 8. The Same Emperor
to Maximus. If, before the property
pledged was sold, you tendered your creditor the money which you owed
him, and he refused to accept it, and witnesses were called to attest
this, and you deposited the money, and matters to-day remain in the
same condition, the sale of said property is not valid. But if you
tendered the payment of the money before the sale was completed, and
it was legally made, it cannot be rescinded. Published on the third
of the Nones of April, during the Consulate of Gordian and
Aviola. 9. The Emperors
Diocletian and Maximian to Cillus. Where property has
been specifically encumbered in your favor, and your debtors refused
to make payment, and the indebtedness was incurred in good faith,
you, observing the legal formalities, should sell the property, for
it will be apparent from the price obtained for the pledge whether
it is sufficient to satisfy the debt, since if anything is lacking,
We do not forbid you to have recourse to other property of the debtors,
by virtue of the agreement. Published on the thirteenth
of the Kalends of June, during the Consulate of Diocletian,
Consul for the third time, and Maximian. 10. The Same Emperors and Caesars to Rufinus. Anyone who has possession
of property which has been pledged, and it is purchased by another
person who represents him, continues to hold it; for as he conducts
the business for himself, he is not considered to have alienated it.
The creditor who buys land that has been pledged, but not through
someone who represents him, or does not appropriate it for himself,
cannot prejudice the rights of the debtor; but the property remains
in the same condition in which it was before this fraudulent act took
place. If, however, he
should purchase it from the debtor, who sold it to him, it would establish
a bad precedent to set aside the sale made with the consent of both
parties, if neither the fraud of the adverse party, nor the employment
of duress by him is proved. Therefore, if you can show by clear, positive
evidence that the creditor always held possession through a fictitious
purchaser, and that he afterwards bought in good faith the property
which was fraudulently disposed of, you can compel the creditor to
make restitution of the same, after having tendered him the payment
of the debt with interest. Published on the third
of the Nones of October, during the Consulate of Diocletian,
Consul for the fourth time, and Maximian, Consul for the third time. 11. The Same Emperors
and Caesars to Rufina. Although a woman may
have specially pledged her property for another, her creditor has
no right to sell it, unless she took advantage of his ignorance and
deceived him, by allowing her husband to pledge her property as his
own. Published at Heraclia,
on the fifth of the Kalends of May, during the Consulate of
the above-mentioned Emperors. 12. The Same Emperors
and Caesars to Zoticus. If your debtor sold
the property, which was pledged to you, without your consent, the
ownership of the same together with its encumbrance passes to the
purchaser. Ordered at Heraclia,
on the day before the Kalends of May, during the Consulate
of the above-mentioned Emperors. 13. The Same Emperors
and Caesars to Theodota. Anyone who buys land
which has been pledged to a creditor, and has not been placed in possession,
is not entitled to a real action to recover it. Published at Sirmium,
on the sixteenth of the Kalends of December, during the Consulate
of the above-mentioned Emperors. 14. The Same Emperors
and Caesars to Modestus. If your debtors have
not paid you that to which you are legally entitled, the Governor
of the province, having been applied to, will authorize you to sell
the property hypothecated by your debtors, and which is in their possession. Published at Sirmium,
on the sixteenth of the Kalends of December, during the Consulate
of the above-mentioned Emperors. 15. The Same Emperors
and Caesars to Aviana. If a debtor should
corrupt the slaves that he had pledged to his creditor, and who were
afterwards sold and delivered by the latter, an action in rem against
the party in possession will lie not in favor of the vendor, but of
the purchaser. Given at Sirmium, on
the Kalends of March, during the Consulate of the Caesars. 16. The Same Emperors
and Caesars to Sylvanus. Where one of several
heirs of a debtor pledges property which he can recover by a personal
action, he does not, by doing so, deprive the creditor of the right
to sell the article pledged. Ordered on the third
of the Nones of April, during the Consulate of the Caesars. 17. The Same Emperors
and Caesars to Agapa. A creditor does not
lose his right to property which has been encumbered by a general
or special agreement, on account of its sale by another creditor who
had nothing to do with the transaction. Given on the day before
the Nones of April, during the Consulate of the Caesars. 18. The Same Emperors
and Caesars to Caianus. Anyone who legally
purchases from a creditor property which has been pledged cannot be
molested on account of the ownership of the same. Signed on the sixth
of the Kalends of May, during the Consulate of the Caesars. 19. The Same Emperors
and Caesars to Lybia. If your husband lent
money, even though it was your own, you will have no right to sell
in your own name the property pledged to him for the debt, if you
did not succeed to him as heir. Ordered at Heraclia,
on the sixth of the Ides of November, during the Consulate
of the above-mentioned Emperors. 20. The Same Emperors
and Caesars to Sabinus. If nothing was specially
agreed upon, and the pledges were sold by the creditor, in accordance
with the terms of the contract, for a larger sum than was due to him,
even though he may have purchased land with the proceeds, an action
in rem will not lie for the surplus, but one in personam
must be brought, that is to say, an action on pledge. Ordered at Byzantium, on the sixth of the Ides of November, during the Consulate of the Caesars. Title
29. A debtor cannot prevent the sale of the property pledged. If there are any persons
who desire to purchase the land which has been encumbered to you,
they will not be prevented from doing so by the terms of the will,
under which the debtor is forbidden to sell any real property belonging
to him, and the penalty is added that, if he does, the land shall
be forfeited to the Treasury, for it is clear that by a provision
of this kind the rights of the creditor are prejudiced. Given on the sixth
of the Kalends of May, during the Consulate of Aper and Maximus. 2. The Emperor Gordian
to Nepos. The notice given to
a debtor by his creditor not to sell any of the property pledged to
him, or to those who wish to purchase it from him not to buy it, is
only effective where he tenders the entire amount of the debt, both
principal and interest, to the creditor, and the latter refuses to
accept it, and the debtor then deposits the money in the presence
of competent witnesses, as is required. Even if he only pays a certain
proportion of the principal and interest due, the sale of the property
pledged cannot be prevented. Under these circumstances, the purchaser
does not become a possessor in bad faith, although he may be aware
that notice has been served upon the creditor by the debtor. Published on the third of the Nones of August, during the Consulate of Gordian and Aviola. Title
30. Where proceedings are instituted on account of the sale of a pledge. If, having applied
to the Governor of the province, it should be proved that your creditor,
who had a right to sell the pledges, made a fraudulent sale of the
tract of land, the Governor will order him to pay you damages and
interest. When, however, the said creditor, against whom judgment
was rendered, is unable to pay the money, and it is proved that the
purchaser bought the land in bad faith, and you tender him the amount
for which the land was sold with interest, the Governor will order
the purchaser in bad faith to restore you the land with its profits. Published on the Kalends
of September, during the Consulate of Alexander. 2. The Same Emperor
to Aemilius. Your father, or yourself
(if his estate belongs to you as his heir) can demand from the possessors
the slaves whom you allege were illegally sold by your father's creditor.
If, however, title to them has been acquired by usucaption, your father can collect
the price paid for the same from the creditor who illegally disposed
of them. Published on the third of the Kalends of January, during the Consulate of Alexander. 3. The Same to Claudius. If your wife should
prove before the Governor of the province that she owed thirty aurei,
and that her creditor sold her slaves who had been pledged for
that sum, for twenty aurei, and afterwards became insolvent,
he will order the slaves to be restored to her, after the price paid
for them has been refunded. Published on the sixteenth
of the Kalends of October, during the Consulate of Maximus,
Consul for the second time, and Aelianus. 4. The Emperor Gordian
to Eudemus. As you state that a
sale of the land encumbered was not made by your creditor in good
faith, for the reason that the formalities which are customary in
the sale of property pledged were not observed, having gone before
the Governor of the province, you will have a right to proceed by
a competent action, not only against your creditor, but also against
the party in possession, if you can prove that he participated in
the fraud with your creditor; so that the transaction which is proved
to have taken place in bad faith, having been rescinded, an account
of the profits and of the loss which it may appear that you have sustained,
may be rendered. Published on the Kalends
of April, during the Consulate of Sabinus, Consul for the second
time, and Venustus. 5. The Emperors
Diocletian and Maximian, and the Caesars, to Nonia. If the purchaser, without
being guilty of fraud, bought the property pledged which was sold
by the creditor before his debt was paid, the successor of the latter,
and not the heir of the purchaser who is in possession of the property,
should be sued. Ordered at Nicomedia, on the sixteenth of the Kalends of January, during the Consulate of the Caesars. Title
31. Concerning the release of pledges. The heir of a portion
of the estate cannot receive his share of the pledges unless he pays
the entire debt. Published on the third
of the Kalends of April, during the Consulate of Albinus and
Aemilianus, 207. 2. The Emperor Gordian
to Domitius. You should understand
that the lien of a pledge continues to exist even after a personal
action has been brought. Published on the twelfth
of the Kalends of June, during the Consulate of Sabinus and
Venustus, 241. 3. The Emperors
Diocletian and Maximian, and the Caesars, to Florus. If the amount of the
debt has been paid either by the delivery or the sale of property,
and the claim of the person against whom you filed your petition has
been satisfied, and you can prove this before the Governor of the
province, or if any balance is due, and you have tendered it, and
the creditor having refused to accept it, you have sealed and deposited
it, the Governor will see that the property pledged is restored to
you, for it is clear that by the Perpetual Edict an action is granted
to the debtor where the money has been paid to the creditor; or, if
it was his fault that it was not paid, it is perfectly evident that
he can legally be compelled to return the pledge. Given on the sixth of the Ides of October, during the Consulate of the above-mentioned Emperors. Title
32. Where one of several heirs of the debtor or creditor either pays
or receives his share of the debt. It is a clear and undoubted
rule of law that where a creditor dies leaving several heirs, while
a personal action is divided among all by the Law of the Twelve Tables,
the entire amount of the property pledged is encumbered to each one
of them. Given on the twelfth
of the Kalends of May, during the Consulate of Valerian, Consul
for the third time, and Gallienus, Consul for the fourth time, 258. 2. The Emperors
Diocletian and Maximian, and the Caesars, to Claudia. The personal action
is divided among the heirs in proportion to their respective shares
of the estate, but where several pieces of property are pledged, and
possessed by different individuals, the case is different, as the
right to claim the same does not attach to the person but to the property,
and as those who are in possession are not liable in proportion to
their shares of the estate, but for the full amount of the claim,
so they must either pay all that is due, or relinquish possession
of what they hold. Signed at Antioch, on the fifth of the Nones of . . . . Title
33. Where the payment of money is not made after a contract for the pledging of property has been entered into. If (as you assert)
you have given security for money which was not paid to you, and you
can prove that the pledge was delivered, you can
bring a real action; for the mere delivery of a pledge where no money
was paid will not hold, unless it appears that an obligation has been
contracted. Under these circumstances, the actual facts of the case
will protect you, if you have possession of the property pledged,
and your adversary institutes proceedings against you. Published on the Kalends
of September, under the Consulate of Lateranus and Rufinus, 198. 2. The Emperor Alexander
to Peregrinus. If (as you now assert)
the alleged creditor did not pay your wife, who gave the pledge, any
money, but extorted from her security which is not valid, her property
will not be encumbered by the terms of a fraudulent document executed
in violation of the truth. Without date or designation of Consulate. Title
34. Concerning the right to obtain ownership of the property of a
debtor. When you desire to
obtain the ownership of property which has been pledged, the names
of the debtors who you say have failed to make payment must be given,
and you must state whether you have complied with the requisite formalities,
for you are informed that you cannot obtain the ownership of the entire
property pledged by your debtor, even though all of it was, in general
terms, encumbered in your
favor. Published on the fourteenth
of the Kalends of October, during the Consulate of Alexander,
Consul for the third time, and Dio, 230. 2. The Emperor Gordian
to Justa. If your creditor obtained
from Us the right to ownership of the property pledged, and a year
after the rescript was issued accepted interest from you, he is considered
to have relinquished the benefit of the said rescript. Published on the day
before the Nones of December, during the Consulate of Pius
and Pontianus, 239. 3. The Emperor Justinian
to Demosthenes, Praetorian Prefect. We think that the ancient
rule which, however, so far as documents are concerned, never appeared
to be clear, should be absolutely abolished, and, in fact, should
be replaced by better remedies. Therefore, the right of public sale
and the power of release within a year, which were granted by the
ancient law in the case of pledges which anyone wished to acquire
by the right of ownership, We have ascertained only by the perusal
of books, for We have never seen a pledge publicly sold in this way. (1) Hence, We decree
that if anyone should pledge his property to his creditor, and it
was provided in the agreement how the pledge should be sold, whether
at a certain time, or in some other way, whatever was agreed upon
in the contract between the creditor and the debtor with reference
to the sale of said property shall be observed. If, however, no agreement
was made, the creditor shall be given permission to sell the pledge
two years after notice has been given to the debtor, or after judgment
has been rendered, the term to be computed from the day when the notice
was issued, or the judgment published. (2) But when no one
appears who desires to purchase the property and it becomes necessary
for the creditor himself to acquire it by the right of ownership,
We decree that, in cases of this kind, the following shall be observed,
namely: that if the debtor is present, notice shall be served upon
him, even after the lapse of two years; or if he is absent, the creditor
shall apply to the tribunal of the province, and ask the judge to
issue a summons for the debtor to appear at a time which he shall
designate, which summons shall be served by the court attendant, and
contain what is claimed by the creditor, and a certain date shall
be fixed, within which, if the debtor should be found, he can pay
the debt and recover the pledge. If, however, he should not be found, the judge
must designate a certain time within which he shall be permitted to
appear, tender the money due, and release the pledge. (3) If, however, after
the designated time has expired, the debtor should either not be found,
or refuse to pay the full amount claimed, the creditor can then apply
to the Emperor and petition him for the right to acquire the ownership
of said property, and permission shall be granted him to do so. After
this has taken place the debtor shall, through motives of humanity,
be entitled to the term of two years to redeem his property, which
shall be reckoned from the day when the Imperial Decree was issued;
and he shall be allowed to pay the creditor, who has become the owner
of the property, his debt, with interest, and reimburse him for any
losses which he may have sustained, the amount of which the creditor
must prove by his oath, and the debtor will then be entitled to recover
his pledge. Where, however, the said term of two years has
elapsed, the creditor shall have a perfect title to the property,
and his ownership will become irrevocable. (4) But if the pledge
should be found to be worth less than the debt, the creditor shall
have the right to proceed against his debtor for the deficiency. When
the value of the pledge and the amount of the debt are found to be
equal, there is no doubt that the creditor can retain the entire property
previously pledged. If, however, the debt should amount to less than
the value of the pledge, then, by Our law, the excess shall be reserved
for other creditors to whom the property was not pledged, or for the
debtor himself. And, that no difficulty may arise with reference to the excess, permission
is hereby granted to the creditor or owner to furnish proper security
for the payment of the said excess to the debtor. (5) When, however,
the creditor, after having, as owner, obtained possession of the property
pledged, desires to sell it, he shall have permission to do so, and
if anything over and above the amount of his claim should be collected
it shall be reserved for the debtor. But when any doubt arises with reference to the
sale, for instance, if it should be asserted that a lower price was
paid than the property was worth, the creditor will be obliged to
make oath that he was guilty of no machination or fraud, but that
he sold the property for as much as he could obtain for it; and he
shall only be compelled to return to the debtor any surplus which
he may have sworn to. If, however, it should be ascertained from the
oath of the creditor that he received less than the amount of the
debt from the sale, he will have a right to bring suit against the
debtor for the remainder. (6) We desire that
there shall be a judicial decision as to the value of the property
pledged, if it should remain in the hands of the creditor, and the
judge must determine whether it is more or less than the indebtedness,
and whatever he may hold on this point will establish the value of
the pledge. Given at Constantinople, on the fifteenth of the Kalends of April, during the fifth Consulate of Lampadius and Orestes, 530. Title
35. Concerning contracts relating to pledges and the abolition of the law of conditional avoidance
with reference to pledges. He who entered into
an agreement that, unless within a certain time he paid the money
which he had borrowed, his creditors could sell the property hypothecated,
did not make a valid contract, for he included in it the right to
which his creditor was entitled when he received the pledge. Therefore,
according to the Common Law, the creditor can sell the property. Published during the
Ides of October, during the Consulate of Alexander,
223. 2. The Emperors
Diocletian and Maximian, and the Caesars, to Dionysius. If a third party has
questioned the title of the purchaser to the property which you sold
him, and you have given the latter a written pledge or hypothecation
of another tract of land to protect him against eviction, under the
condition that if he should not be evicted from the land which you
sold him he will return to you the premises encumbered to him by the
second contract, and that, if judgment should be rendered in this
case against the person who raised the question of title, the judge
will order the terms of the agreement to be complied with, if the
matter remains in its former condition, and as the purchaser is secure,
against eviction, the land which was hypothecated shall be restored
to you. Ordered at Sirmium,
on the Kalends of December, during the Consulate of the Caesars. 3. The Emperor Constantine
to the People. As the harshness of
the law of conditional avoidance is conspicuous among other abuses,
We have decided to declare it void, and to abolish it. Therefore,
if anyone has been oppressed by a contract of this kind, he shall
be relieved by this law, which annuls all past and present agreements
of this kind, and forbids them to be made hereafter. We, however,
order that creditors who have lost their property by this law shall
have a right to recover what they have paid. Given on the second of the Kalends of February, during the Consulate of Constantine, Consul for the seventh time, and Constantius, 326. Title
36. Concerning exceptions or prescriptions. In accordance with
the terms of the ancient law, those who are indebted to an estate
are liable to each one of the heirs in proportion to his share of
said estate; but if you have paid all the money due to those only
whom the testator mentioned by name when making the distribution,
you can defend yourself against the others, by an exception on the
ground of bad faith, if they should bring suit. Published on the tenth
of the Kalends of August, during the Consulate of the two Aspers,
213. 2. The Same Emperor
to Julius. If judgment has not
been rendered against you, you can bring an action to recover your
share in the house to which you allege that you are entitled, for
an exception on the ground of res judicata can only be pleaded
against the party, or his heirs between whom the case was heard, and
judgment rendered. Published on the fifteenth
of the Kalends of March, during the Consulate of Antoninus,
Consul for the fourth time, and Balbinus, 214. 3. The Same Emperor
to Vital. If you did not bring
the action of guardianship against your brother, who was formerly
your guardian, do so now, and do not fear that an exception based
on an agreement will be filed, provided you can prove that fraud and
deceit have been committed, for a replication on the ground of deception,
when pleaded, renders the action a bona fide one, and excludes
the effect of any fraud which may have been committed. 4. The Emperor Alexander
to Julianus and Others. As you state that the
case has not yet finally been decided but merely continued, there
is no doubt that your right to defend yourself still remains unimpaired. Published on the second
of the Nones of October, during the Consulate of Maximus, Consul
for the second time, and Aelianus, 224. 5. The Emperors
Diocletian and Maximian, and the Caesars, to Basilius. Although the interdict
Unde vi must be resorted to within a year, still it is evident
that, by the authority of the law, a perpetual exception can be pleaded
by him who, although having been violently attacked, has, nevertheless,
retained possession of the property. Ordered on the Kalends
of May, during the Consulate of the abovementioned Emperors. 6. The Same Emperors
and Caesars to Helena. If an agreement was
made with reference to an exception, you can, without restriction
of time, reply by pleading an exception on the ground of fraud. Ordered on the Kalends
of September, during the Consulate of the above-mentioned Emperors. 7. The Same Emperors
and Caesars to Menander. If your debtor paid
you a smaller amount than he owed you, and you did not give him a
release, you will not be prevented from bringing suit to recover what
is proved not to have been paid, and you can in your replication plead
an exception on the ground of fraud against the One founded on the
agreement. Ordered on the second
of the Kalends of March, during the Consulate of the Caesars. 8. The Same Emperors
and Caesars to Aurelius. The peremptory exception
which it was sufficient to plead in the first place, even though this
may have been neglected, can be filed at any time before judgment
is rendered. Ordered on the fifteenth
of the Kalends of November, during the Consulate of the Caesars. 9. The Same Emperors
and Caesars to Mutianus. If you think that the
plaintiff cannot prove his claim, it is not necessary for you to make
any defence. When, however, while acknowledging the validity of it,
you allege that you are protected by an exception, cognizance of the
exception alone should be taken. For if you have any doubt of the
justice of your opponent's cause, your exception ought only to be
considered after the plaintiff has proved his claim in accordance
with his allegations, for then it will be proper for it to be examined. Ordered on the third
of the Nones of November, during the Consulate of the Caesars. 10. The Same Emperors
and Caesars to Aquilina. Plaintiffs do not protect
themselves by means of exceptions, the benefits of which are granted
to defendants under certain circumstances, but they can establish
their claims by means of replications, if they have any which are
valid. Ordered at Nicomedia,
on the Kalends of December, during the Consulate of the Caesars. 11. The Same Emperors
and Caesars to Neo. It is settled that
while the case remains unchanged, those who represent the parties
can avail themselves of the same exceptions and defences to which
their principals would have been entitled. 12. The Emperor
Julian to Julian, Count of the East. If an advocate, during
the progress of a case, should desire to avail himself of a dilatory
exception which he neglected to make use of in the beginning, and
he is deprived of this resource, but still perseveres in setting up
this ill-timed defence, he shall be fined a pound of gold. Given at Antioch, on
the seventh of the Ides of March, during the Consulate of Julian,
Consul for the eighth time, and Sallust, 363. 13. The Emperors
Honorius and Theodosius to Symmachus, Proconsul of Africa. The authority of the
law declares that exceptions to jurisdiction must always be pleaded
by litigants at the beginning of a case. Given at Ravenna, on the fifth of the Kalends of September, during the Consulate of Honorius, Consul for the tenth time, and Theodosius, Consul for the sixth time. Title
37. Concerning disputed property. As the creditor has
sold the pledge, a purchase of property subject to contest cannot
be considered to have been made, even though the debtor may have forbidden
the sale to take place. Published on the Kalends
of May, during the Consulate of Aper and Maximus, 208. 2. The Emperor Constantine
to the People of the Provinces. While« a suit is pending,
the plaintiff is not permitted to transfer any rights of action which
are in litigation, or any property which he alleges is retained by
the defendant, to any person connected with him, or to any stranger,
either by donation, sale, or any other kind of a contract whatsoever;
and, if he should do so, the case shall still proceed just as if nothing
had been done. Given on the Kalends
of March, during the Consulate of Bassus and Ablavius, 331. 3. The Emperors
Gratian, Valentinian, and Theodosius to Tattian, Praetorian Prefect. Where anyone who has
bequeathed, either by a will or a codicil, any property, the title
to which is in dispute, or any claim of doubtful validity, or any
movable or immovable property, to Our Treasury or to a person in authority,
or to anyone else, or has left the same under a trust, or as part
of an estate, neither Our Treasury, nor anyone else shall have the
right to contest the ownership of the same, or appear in court, but
a judicial appraisement of it must be made, and it shall be delivered
to those to whom the rights of action for property in dispute have
been bequeathed. The heirs, themselves, should conduct the case, and
claim, at their own risk, the said property whose title is contested,
and which has been left by will. It has been decided with reference
to written claims which are of doubtful validity that the heirs of
persons who have left bequests to the Treasury, or to other legatees,
after having estimated the value of the same, can sue those who they
may consider liable. Given at Thessalonica,
on the fifteenth of the Kalends of July, and again at Constantinople,
on the thirteenth of the Kalends of January, during the Consulate
of Gratian, Consul for the fifth time, and Theodosius, 380. 4. The Emperor Justinian to John, Prastorian Prefect. We decree that if anyone
should, while a case is pending, transfer to any person whomsoever
either the rights of action or the property involved, whether the
latter knows or is ignorant that the title to said actions or property
is in dispute, a certain distinction shall be observed between the
contracting parties, so that when anyone knowingly receives such property
either through a sale, a donation, or by virtue of any other kind
of a contract, he is hereby notified that he will be compelled not
only to return the property, but also will be deprived of the price
of the same, but the profit shall not accrue to him who made the sale
but to the Treasury, to which he shall be required by law to
pay an equal sum. If,
however, the purchaser should buy property whose title was in dispute,
without being aware of the fact, or should obtain it by any other
kind of a contract, then the alienation shall be considered void,
and the price shall be returned to the purchaser, together with a
sum equal to one-third of the amount of the same; for it is only just
that on account of the fraudulent
intent and secret duplicity of the vendor, who did not inform the
purchaser that the title to the property was being contested in court,
he should be punished by being forced to pay a sum equal to the third
part of the price, as We have already decreed. This
penalty shall not only be imposed in the case of other contracts,
but also with reference to donations, so that a true appraisement
having been made, he who transferred the property to another shall
be fined, and all instruments evidencing transactions of this kind
shall have no force or effect. All
contracts relating to dowries, ante-nuptial donations, compromises,
or the distribution of estates, as well as those providing for the
disposal of property by means of legacies or trusts, or where rights
of action have been given or accepted, are, however, not subject to
the provisions of this law. Given on the fifteenth of the Kalends of November, after the fifth Consulate of Lampadius and Orestes, 532. Title
38. Concerning the contraction of a stipulation. Although the letter
which you have inserted in your petition does not set forth that he
to whom security was given did not stipulate, still, if the transaction
took place between parties who were present, it must be believed that
the stipulation preceded, and the response followed. Adopted on the seventeenth
of the Kalends of May, during the Consulate of Severus, Consul
for the third time, and Victorinus, 201. 2. The Same Emperors
to Petronius. If you stipulated that
the money should be paid to your daughter, whom you had under your
control, you will not be prevented from requiring the obligation to
be complied with. Published on the Nones
of November, during the Consulate of Faustinus and Rufinus, 211. 3. The Emperor Antoninus
to Hadrian. If, when you lent the money, you did so in the name of Julianus, the stipulation was made with reference to a person who was absent. As a stipulation entered into under such circumstances is void, you understand that no obligation exists, except that contracted through the property, hence if Julianus should collect the money from your g debtor, and you have ratified the payment of the same, you will be entitled to an action against him on the ground of voluntary agency. Published on the sixth
of the Kalends of March, during the Consulate of Prassens and
Extricatus. 4. The Emperor Alexander
to Sabina. According to the opinion
of my friend, the Jurist Domitius Ulpianus, Prefect of Subsistence,
the woman who wished to have power to bequeath half of her dowry at
the time of her death and made a stipulation to that effect is considered
to have stipulated that the said portion of her dowry should be restored
to her when she died. 5. The Emperors
Diocletian and Maximian, and the Caesars, to Isidora. In accordance with
what has been frequently decided, the laws do not always permit a
man to be compelled to do what he agreed to by a mere promise without
consideration. But as you allege that your adversary agreed under
the stipulation to pay you, in addition, an amount equal to the value
of the property, if he did not fulfill his contract, and as, after
the case was brought into court, this condition of the obligation
is shown to have existed, it is established that you have good ground
to demand the payment of the said sum which was also included in this
stipulation. 6. The Same Emperors
and Caesars to Erotius. You ought to have known
that where, under a compromise, something was agreed to be given,
whether a certain or an uncertain amount was stipulated for, it can
be recovered. Ordered at Sirmium,
on the sixteenth of the Kalends of January, during the Consulate
of the above-mentioned Emperors. 7. The Same Emperors
and Caesars to Antonius. The absence of either
a guardian or a curator does not, in any way, affect the validity
of a stipulation, as there is no doubt that a woman, who is under
the age of twenty-five years, can enter into a stipulation during
the absence of her curator. Ordered on the sixteenth
of the Kalends of February, during the Consulate of the Caesars. 8. The Same Emperors
and Caesars to Posidonius and Others. The promise to furnish
a slave who will never die is impossible of execution, but anyone
who stipulates for the payment of money after the death of a slave
can legally demand it. Ordered on the twelfth
of the Kalends of March, during the Consulate of the Caesars. 9. The Same Emperors
and Caesars to Capito. If, when terrified
by the fear of death or corporeal suffering, you bound yourself to
Zeno under a stipulation, you can defend yourself against him by an
exception on this ground, if he should bring an action. Where, however,
nothing of this kind was proved, your promise will not be void merely
because you brought a criminal accusation against your adversary,
or intend to do so, as the stipulation was not entered into from some
base motive, but for a commendable reason. But if the money was promised
as a consideration for not bringing a criminal accusation, the demand
will be refused, as it is not legal to make agreements of this kind. Ordered on the fifth
of the Ides of October, during the Consulate of the Caesars. 10. The Emperor
Leo to Erythrius, Praetorian Prefect. All stipulations, even
if they are not expressed in formal or direct words, but in any words
whatsoever, with the consent of the contracting parties, and they
are in conformity with the laws, shall be valid. Given at Constantinople,
on the Kalends of January, during the Consulate of Martianus
and Zeno, 469. 11. The Emperor
Justinian to Menna, Praetorian Prefect. We, intending to absolutely
abolish certain technical difficulties of the ancients, namely: that
where anyone has made a stipulation, or left anything by way of legacy,
or under a trust, by the terms of his will, in the following words:
"After my death," "At the time of my death," or
"The day before my death," We decree that everything included
in a stipulation, a contract, an agreement, or any disposition made
by a testator in his will, which is to take effect after his death,
or the day before he dies, shall, nevertheless, be valid, in accordance
with the tenor of said contract or will. Given at Constantinople,
on the third of the Ides of December, during the Consulate
of Our Lord the Emperor Justinian, 528. 12. The Same Emperor
to Menna, Praetorian Prefect. Desiring to elucidate the great obscurity of the ancient laws, which, up to this time, has afforded a great opportunity for the protraction of litigation, We order that where anyone stipulates that he will either do or give something at a certain time, or both, or promises what the stipulator desires, and then adds that if what was promised should not be done at the designated time, he will pay a certain penalty, the debtor is hereby advised that he cannot avoid the penalty to which he subjected himself, on the ground that no one notified him, but he will be liable to the said penalty according to the terms of the stipulation, even without any notice, as he should retain in his memory what he agreed to do, and not require to be reminded of it by others. Given at Constantinople,
on the ninth of the Ides of April, during the fifth Consulate
of Decius, 529. 13. The Same Emperor
to Julian, Praetorian Prefect. In order to settle
the disputes arising out of the ancient law, We decree, in general
terms, that every stipulation, whether it consists in giving anything,
doing anything, or both giving something or performing some act, shall
be transmitted both to and against heirs, whether any special mention
has been made of them or not, for why should what is just, so far
as the principal parties are concerned, not be transmitted both in
favor of and against their successors? And, as it is held that stipulations of this description,
having reference to something which should be given, can still be
performed by heirs, the subtle and superfluous opinion, by which it
is decided that what is imposed on one person cannot possibly be executed
by another, is hereby abolished. For, as the nature of all men is
more or less similar, why cannot any of them do what others can, and
why should the wills of men be void on account of an over nice distinction
of this kind? Given at Constantinople,
on the Kalends of August, during the Consulate
of Lampadius and Orestes, 530. 14. The Same to
John, Praetorian Prefect. It is now proper to
dispose of an important question which frequently comes up in the
tribunals, in order to prevent it from causing any further annoyance
to the Government. In many contracts, and especially in those having
reference to the payment of interest, it is usual for the stipulations
to be entered into through the agency of slaves, who, induced by want
of fidelity, at times avail themselves of this opportunity to raise
controversies; as, in some instances, it is. contended that the slave
did not make the stipulation, or asserted that he did not belong to
the person by whom the terms of the written contract should be carried
out; and in others, it is alleged that the papers were not drawn up
by slaves but by the parties themselves, who were present, hence a
doubt arose whether proof should be offered that the parties were
present. Therefore, as
it is convenient for slaves to be employed in making contracts, and
where it is stated that the principals themselves were present, and
this was not the case, on account of the dignity of the persons involved,
or because they are women (as the natural modesty of the latter does
not permit them to be present during every transaction), We order
that documents of this kind shall be valid under all circumstances;
and, whether they set forth that they were drawn up by slaves, who
were said to belong to certain persons, or not, the slave shall, by
all means, be considered to have been present, and to have drawn up
the stipulation, and that it has been acquired by the person stated
therein to be his master, and that no question shall arise whether
the slave himself, or his master, in whose behalf it is stated in
the document that the stipulation was made, was present. And if the
transaction is said to have taken place between the parties, who were
present, this also shall" be believed, provided both of them
were in the town at the time when the instrument was drawn up; unless
he who alleges that he
himself or his adversary was absent can prove by the clear and manifest
testimony of perfectly reliable witnesses to whom no exception can
be taken, or better still, by documentary evidence, that either he
or his adversary was not in the town on the day when the stipulation
was made. Written documents of this kind should be considered valid
on account of their advantage to the contracting parties. Given on the Kalends
of November, after the fifth Consulate of Lampadius and Orestes,
531. 15. The Same Emperor
to John, Praetorian Prefect. Where anyone promises
the stipulator to build him a house at the time of his death, an agreement
of this description would have appeared impossible to the ancient
authorities. If the intention of the contracting parties is considered,
it seems to Us to be very probable that a transaction of this kind
can take place, so that an obligation which began at the time of the
death of the promisor would render his heirs liable until it was carried
into effect. For no one can be found who is so foolish as to make
a stipulation with the idea that a building could be erected in a
moment of time, or that anyone at the point of death could think that
he himself would be able to finish such a work. (1) Therefore, We order
that if anything of this kind should happen, the heirs of the promisor
will be liable to execute what he promised at the time of his death,
just as if the heir was expressly mentioned, although this may not
have been done. For if the stipulation provided that something should
be given, as this could be transmitted against the heirs, so, where
some act was to be performed, even though it was promised at the time
of death, the heirs will still be obliged to carry it out, just as
in the case where the stipulation provided for something to be given,
in order that no distinction may exist between the performance of
an act and the bestowal of a gift, but Our law may be consistent in
every respect. We decree that this rule shall be observed in
the same way with reference to legacies. Given at Constantinople, on the fifteenth of the Kalends of November, during the fifth Consulate of Lampadius and Orestes, 532. Title
39. Concerning stipulations which are void. You are not bound by
a stipulation which you made, while under the age of puberty, without
the intervention of your guardian. Published during the
Kalends of July, during the Consulate of Laetus, Consul for
the second time, and Cerealis, 216. 2. The Emperor Alexander
to Menophilus. The freedom of marriage
has been established from ancient times, and therefore agreements
providing that it shall not be lawful for the parties
to be separate are void, and it has been decided that stipulations
by whose terms penalties are imposed upon those who obtain divorces
are not to be considered valid. Published on the third
of the Nones of February, during the Consulate of Maximus,
Consul for the second time, and Aelianus, 224. 3. The Emperors
Diocletian and Maximian to Isidora. As a verbal obligation
cannot be contracted by persons who are absent, so no one can stipulate
for anything to be given or restored to another, who is not subject
to his authority, unless he is present. Therefore, as your daughter
died during marriage, and you consented that half of her dowry should
be held by her husband, in the name of a surviving son, and the other
half be given to your grandson, or if he should not be alive, that
it should be restored to Julian in accordance with the terms of a
contract which you allege was entered into, and your grandson having
died first, you state that on account of his absence the stipulation
made in favor of Julian was not valid, and for this reason you ask
that all the property which you provided for by the terms of your
stipulation shall be restored to you, apply to the Governor of the
province with reference to your stipulation, so that the allegations
of the parties having been examined, the amount which it is to your
interest should be restored to Julian, and which is now uncertain,
may be determined, and he may decide how much shall be paid
to you. Published on the Ides
of December, during the Consulate of Diocletian, Consul for the
fourth time, and Maximian, Consul for the third time, 290. 4. The Same Emperors
and Caesars to Domna. It is clear that you
have no right of action under the instrument in which a stipulation
contrary to good morals was made with reference to a succession, as
all provisions against good morals, whether set forth in a contract
or in a stipulation, are of no force or effect. 5. The Same Emperors
and Caesars to Aquilina. A right of action,
indeed, arises where a stipulation is entered into through fraud or
fear; still, it can be barred by an exception on either of these grounds. Ordered on the thirteenth
of the Kalends of October, during the Consulate of the above-mentioned
Emperors. 6. The Same Emperors and Caesars to Septimius. If your grandmother
stipulated that the money which she lent should be paid to herself,
and to Eustolius, she cannot by such a stipulation obtain anything
for the benefit of someone not under her control. But if Eustolius,
himself, stipulated in his own name that the money should be paid
to him, there is no doubt that the right to the obligation is not
personally acquired by him. Ordered on the fifth of the Kalends of October, during the Consulate of the Caesars. Title
40. Where two or more persons stipulate and promise. Where two or more persons
jointly enter into an agreement for the delivery of certain property,
an action for the full amount of the same will lie against either
one of them, if circumstances require it, as long as the property
remains in the same condition. Published on the third
of the Nones of December, during the Consulate of Maximus,
Consul for the second time, and Aquilinus, 286. 2. The Same Emperors
to Diogenes. Where two persons have
promised to pay the money, a creditor cannot be prevented from collecting
his debt from whichever one he may choose to sue. Therefore, if you
can prove that you, having been sued, have paid the entire indebtedness,
the Governor of the province will not hesitate to assist you against
him with whom you jointly borrowed the money. Ordered on the fifth
of the Kalends of March, during the Consulate of Diocletian,
Consul for the third time, and Maximian. 3. The Same Emperors
and Caesars to Fabianus. You should have stated
in your petition whether each of you bound yourselves for only a part,
or for the entire amount of the obligation, and whether you promised
jointly as two debtors, as if each of you only bound himself for a
portion, the terms of the contract cannot be violated; if, however,
both of you obligated yourselves for the full amount, the creditor
cannot by a rescript be deprived of his right to sue either of you. Ordered at Byzantium,
on the Ides of April, during the Consulate of the above-mentioned
Emperors. 4. The Same Emperors and Caesars to Andronicus. Where money has been
lent to one person alone and others have promised jointly with him
to pay it, the laws do not permit them to be released
from liability, if the money should not be paid in accordance with
the terms of the contract. Ordered at Sirmium,
on the fifth of the Ides of February, during the Consulate
of the Caesars. 5. The Emperor Justinian to John, Praetorian Prefect. Where several debtors
have agreed to pay different debts to their creditors, or one creditor
has two or more debtors, or, on the other hand, where several creditors
have but one debtor, and some of the debtors acknowledge the obligation
due to certain creditors either by making payment, or in other ways
of interrupting prescription, which We have found inserted in former
laws whose scope We have enlarged, or where certain debtors have acknowledged
the claims of one creditor, or where there are several creditors and
there being but one debtor, he acknowledges the indebtedness to one
or more of said creditors, and the question arose whether he or they
ought to be granted permission to sue the others, whose portions of
the debt they have paid without the latter being permitted to plead
prescription, or, in case some of the debtors having acknowledged
the debt, or having been defeated in court, the others should be excluded
from making any defence, it seems to Us to be consistent with the
dictates of humanity that, where prescription has been interrupted,
or acknowledgment of the debt has been made with reference to one
and the same contract, all the parties should be compelled to pay
the debt at the same time, whether there are several debtors, or only
one of them, or whether there are several creditors, or not more than
one. Hence We decree that in every case above mentioned,
where part of the debt has been paid or acknowledged, or the other
debtors have been notified in writing that they are liable, the other
creditors shall enjoy the benefit. Therefore they shall be jointly
responsible and none of them will be permitted to profit by the unfairness
of another, as a single contract is derived from one source or liability,
and a debt is incurred by the same act. Given at Constantinople, on the Kalends of September, after the fifth Consulate of Lampadius and Orestes, 531. Title
41. Concerning sureties and mandators. If Lysias was sentenced
to exile and a loss of part of his property, he is only liable to
his creditors for the part which he retained. But those who became
his sureties can be sued under former laws. Published on the Ides
of October, during the Consulate of Severus, Consul for the third
time, and Victorinus. 2. The Same Emperors
to Plocius. A creditor who received
both pledges and a surety for the same debt shall be permitted to
sue the surety for the money for which the latter
rendered himself liable (if he desires to do so), but if he does sue
him, he should transfer to him his right to the pledges. When, however,
the creditor has a lien on the said pledges or hypothecations because
of some other claim, he cannot be compelled to transfer them until
the entire indebtedness has been paid. Given on the fifth
of the Kalends of February, during the Consulate of Aper, Consul
for the second time, and Maximus, 208. 3. The Same Emperors
to Maximus. If your allegations
are correct, or Our procurators have unlawfully refused to hear you
with reference to your recovery of the money out of the property of
the surety, which had been placed in the Treasury, but directed you
to sue the principal debtor, since power is given to a creditor to
select whichever one he prefers, as, however, you allege that you
obtained two sureties, if one of them is solvent, you understand that
the amount having been divided, you can demand from Our procurator
only half of the debt, and must proceed against the other surety for
the remainder. For although you state that it was mentioned in the
obligation that each of the sureties should be liable in full, still,
this provision, in no respect, changes the requirements and rules
of the law, for even if this had not been added, each of them would
still be liable for the entire indebtedness. Where, however, all of
the sureties are solvent, the obligation shall be divided in proportion
to their number. Published on the seventeenth
of the Kalends of September, during the third Consulate of
Antoninus and Geta, 209. 4. The Emperor Antoninus
to Rufa. Where a novation has
been lawfully made, or the claim transferred to another, there is
no doubt that the sureties or mandators of the first contract will
be released, provided they do not obligate themselves by the last
one. Published on the fifteenth
of the Kalends of October, during the Consulate of Antoninus,
Consul for the fourth time, and Balbinus, 214. 5. The Same Emperors
to Potamon. Under Our law, a creditor
is not empowered to bring suit against the sureties without including
the principal debtor, unless it has been proved to have been otherwise
agreed upon by the contracting parties. 6. The Same Emperor
to Polla. If your father did
not bind himself for Cornelius when the latter borrowed money, you
are sued to no purpose merely because you signed the contract as a
witness. Published on the eleventh
of the Kalends of July, during the Consulate of Messala and
Sabinus, 215. 7. The Same Emperor
to Erotus. If the creditor whom
you directed to lend a certain sum of money on your account did not
take pledges as you directed him to do, he has brought an action of
mandate against you in vain, as you understand that you are not liable
unless the obligation was contracted with pledges given as security. Published on the Kalends
of July, during the Consulate of Lsetus, Consul for the second
time, and Cerealis, 216. 8. The Emperor Alexander
to Longus. The son under paternal
control who became surety for his father even where the sale of land
is involved, is liable. Published on the second
of the Ides of October, during the Consulate of Maximus, Consul
for the second time, and Aelianus, 224. 9. The Same Emperor
to Aristocrates. Even if an action has
been brought by the creditors for the purpose of selling the pledges,
this does not release the sureties. Published on the fifth
of the Kalends of December, during the Consulate of Maximus,
Consul for the second time, and Aelianus, 224. 10. The Same Emperor
to Vitalus. When a surety or a
mandator has also obligated himself for the interest, he has no legal
reason for refusing to pay it. Moreover, one who became surety with another cannot
be sued alone, but the action must be divided among those who are
solvent, and this demand must be made by the defendant surety, in
its proper place, before judgment has been rendered. 11. The Same Emperor
to Sallust. When one of the sureties
has paid the entire debt, an action will not lie in his favor against
the other sureties. After you have paid the Treasury, you can undoubtedly
ask that the right to the pledge which the Treasury had shall be transferred
to you, and if this is done, you can avail yourself of any rights
of action which have been assigned. This rule shall also be observed in the case of private obligations. Published on the seventh
of the Kalends of November, during the Consulate of Alexander,
Consul for the third time, and Dio, 230. 12. The Same Emperor
to Theodotus. He flatters you who
tells you that you will not be liable for the reason that when you
became security for another you said in Greek Published on the sixth
of the Kalends of September, during the Consulate of Agricola
and Clementinus, 231. 13. Extract from
a Letter of the Emperor Gordian to Auxius. If the decurion stipulated
that he would find the robber Barsatoras, he ought to be compelled
to produce him, or give information to the Praetorian Prefect or the
Governor of the province, so that he may be arrested. 14. The Same Emperor
to Salivus. The action of mandate
is a personal one, and can be brought in the name of a surety against
either the debtor or his heirs, and the Governor of the province will
order payment to be made of the amount which he may ascertain to be
due. The property pledged by the principal debtor under the terms
of the stipulation must be transferred to you, if the claim has been
settled and the rights of action have been assigned to you. When this
has been done, the same illustrious official will grant you an extraordinary
action for the purpose of asserting your right against the parties
in possession of the pledge. Published on the third
of the Nones of July, during the Consulate of Gordian and Aviola,
240. 15. The Same Emperor
to Claudian. If you, through mistake,
have given security, and, as surety, are compelled to pay money which
you did not owe, you can make use of the exception based on bad faith,
as well as bring a personal action to obtain your release from an
obligation which you did not, in reality, contract. Moreover, there is no doubt that the surety of
a debtor is released, when the property of the latter has been seized
by the Treasury, and suit been brought against the Treasury for the
recovery of the debt, which has been paid. Published on the fifth
of the Kalends of December, during the Consulate of Gordian
and Aviola. 16. The Same Emperor
to Maximus. A creditor has the
right to choose any one of the sureties (provided he does not consider
them all to be solvent) if he makes his selection before suit has
been brought against all of them together, but, after issue has once
been joined, the rule of law does not permit his application for a
division to be granted. Published on the second
of the Ides of June, during the Consulate of Gordian, Consul
for the second time, and Pompeianus, 242. 17. The Same to
Brasida. It is a well-settled
legal principle that a surety can be sued by the creditors, without
reference to any pledges which may have been given, unless he has
been accepted for an amount which could not be made good out of the
pledges. Published on the sixth
of the Ides of March, during the Consulate of Atticus, and
Praetextatus, 243. 18. The Emperor
Philip to Smyrna. If (as you allege)
you did not sell the land hypothecated for the debt at a fair price,
you cannot legally demand that the remaining amount, which you might
have obtained from the sale of the property, shall be refunded to
you by the surety. Published on the fifth
of the Kalends of August, during the Consulate of Peregrinus
and Aemilianus, 245. 19. The Emperors
Diocletian and Maximian, and the Caesars, to Sabinus. If you have assumed
an obligation either as surety or mandator, or in any other way for
a principal debtor, you should be aware that the creditor cannot press
him who borrowed the money any more than he can you, as he has a right
to make his choice, even if this had not been specifically included
in the contract. Ordered on the second
of the Kalends of May, during the Consulate of the above-mentioned
Emperors. 20. The Same Emperors
and Caesars to Aurelian. The creditor is not
deprived of the right of electing to sue any of the sureties of the
principal debtor, even though the latter may have been convicted of
a crime, and all his property confiscated by virtue of a sentence. 21. The Same Emperors
and Caesars to Julianus. As the creditor has
a right to sue the sureties instead of the principal debtor, so it
is settled that they cannot be pressed to make payment before the
creditor has assigned to them his right to the property hypothecated,
or the pledges he has received, unless it was agreed that he should
do so. Ordered on the eleventh
of the Kalends of November, during the Consulate of the above-mentioned
Emperors. 22. The Same Emperors
and Caesars to Hermianus. If you have agreed
to give more than she for whom you have become responsible as mandator
received, the Governor of the province will not suffer any excess
above what was paid on your mandate to be exacted from you. Ordered on the twelfth
of the Kalends of May, during the Consulate of
the Caesars. 23. The Same Emperors and Caesars to Antipater. You are allowed to
choose any of the principal debtors or their mandators, and sue them,
either for their proportion, or, if he against whom
you first proceed should not be able to pay the entire amount, you
can afterwards have recourse to another, as none of them should be
released by the selection you have made. Ordered at Nicomedia,
on the Nones of December, during the Consulate of the Caesars. 24. The Same Emperors
and Caesars to Pergamius. The heir of a surety
is equally liable with the principal debtor, but if he succeeds to
both of them, the obligation of surety becomes extinguished, and he
can only be sued as the heir of the principal debtor. Ordered on the eleventh
of the Kalends of January, during the Consulate of the Caesars. 25. The Same Emperors
and Caesars to Philip. When pledges given
by the principal debtor have been sold by the creditor, the latter
is not forbidden, even after the interval of a long time, to collect
the balance of the claim from the surety. Ordered on the sixth
of the Kalends of January, during the Consulate of the Caesars. 26. The Emperor
Justinian to Julian, Praetorian Prefect. We order that, if anyone
should bind himself under a stipulation for another that he will produce
him at a certain time, or will pay a certain amount of money for him,
and, after the designated period has elapsed, he should not be able
to produce him, and does not immediately tender the money which he
agreed to pay in his behalf, a penal action can certainly be brought
against him after the time has expired, as aforesaid, but the sum
of money for which he became surety need not immediately be collected.
If, however, the time fixed
was the term of six months, We order that another term of the same
duration shall be granted the surety within which, if he can produce
the other party and deliver him up, he shall be released from the
penalty. But where the term granted in the beginning consisted of
more than six months, another of equal length should be given, to
be reckoned from the expiration of the first six months (no matter
what the original term may have been), within which he shall have
the right to produce the defendant and not pay the money. If the second
term granted should expire without his doing so, he will then be absolutely
required to pay the pecuniary penalty. When, after the expiration
of the first term, the surety wishes to defend the accused person,
he shall be permitted to do so, unless the terms of an agreement forbade
this, and he became surety for him without reserving the right to
make a defence. If, however, he should undertake the defence, he must
conduct it to the end, and permission shall not be given him to deliver
up the accused in the meantime, and evade payment of the money.
After the second term has elapsed, permission
shall, under no circumstances whatever, be granted him to have recourse
to a defence, but he must unquestionably pay the penalty, unless
the principal debtor died during the first term which was granted;
for, in this instance, he must be absolutely released from the exaction
of the penalty. If, however, the defendant should die during the second
term, the penalty for which the surety has become liable shall be
exacted; and We decree that, in all cases in which sureties are subject
to penalties of this kind, the rule shall also apply to their heirs. Given at Constantinople,
on the sixth of the Kalends of April, during the Consulate
of Lampadius and Orestes, 530. 27. The Same Emperors
to John, Praetorian Prefect. If the surety did not
sign any bond, but merely represented himself as such, and acknowledged
in the presence of notaries that he would be responsible for the party
accused, it was doubted by the Bar of Palestine whether he should
not be released after two months had expired, as his liability had
been incurred without any written instrument executed in conformity
with the general edicts of the tribunal of the Praetor, or whether
he could be held liable just as if a written instrument to that effect
had been drawn up. Another
distinction was also introduced, namely, as to whether the same rule
of law should apply to both public and private cases. Therefore
We order that unless a written undertaking has been executed by sureties
for the production of the persons of the parties accused, even though
the acknowledgment of their liability had been made in the presence
of witnesses, still such an acknowledgment ver-.bally made shall not
be binding in private cases; and after two months have elapsed the
sureties shall be released from any obligation of this description
unless they bound themselves for a certain period, for then it should
be extended for the time stated in the presence of witnesses.
But, in public cases, necessity
requires that any acknowledgment of this kind in the presence of witnesses
shall, under all circumstances, be considered to have been committed
to writing; for it is not unreasonable that many legaf privileges
have been granted to the people on the ground of public necessity,
and this privilege is hereby confirmed by Us. Given at Constantinople,
on the tenth of the Kalends of March, after the Consulate of
Lampadius and Orestes, 531. 28. The Same Emperor
to John, Praetorian Prefect. Generally speaking,
We order that what has been decided with reference to mandators, namely,
that where proceedings have been instituted against one the other
shall not be released from liability, shall also be observed with
reference to sureties, for We have ascertained that in the bonds of
sureties provision has, for the most part, been made for this by an
agreement. Hence We order by this general law that through
the selection of one of the sureties, or of the principal debtor,
the others shall not be released, nor will the debtor himself be released
where both the sureties, or one of them is chosen, unless he should
satisfy the creditor, but the rights of the latter shall remain unimpaired
until the entire sum of money to which he is entitled has been paid,
or his claim is satisfied in some other way. We
decree that the same rule shall apply where there are two sureties;
for We do not allow the rights of action of creditors against the
other surety to be prejudiced, where one of them has been selected,
but they shall remain intact, whether they are based on personal or
hypothecary actions, until the claim has been completely satisfied.
For as this is permitted to be done under the terms of agreements,
and We see that it takes place every day in practice, so, for this
reason, it is not conceded by the authority of this law, that the
inadvertence of those who make contracts should, on any ground whatsoever,
be able to impair the rights of the creditor. Given at Constantinople, on the thirteenth of the Kalends of November, after the fifth Consulate of Lampadius and Orestes, 531. Title
42. Concerning novations and assignments. The assignment of a
debt, made under a stipulation, cannot be effected unless with the
consent and approval of the debtor, but the sale of the claim can
be made without the knowledge or acquiescence of the person against
whom the actions at law are directed. Published on the fifth
of the Ides of February, during the Consulate of Maximus, Consul
for the second time, and Julianus, 224. 2. The Emperor Gordian
to Firminus. An action arising from
a contract for the loan of money is brought to no purpose, where a
delegation of the person has been properly made as the former contract
is extinguished by the right of novation. Published on the Kalends
of September, during the Consulate of Pius and Pontianus, 239. 3. The Same Emperor
to Mutianus. If the delegation of
your debtor did not take place, and on this account you have retained
your rights of action, even though you may have assigned them to your
creditor against your debtor, in order to obtain payment, still, before
the case is brought to trial, or your creditor has collected any of
the debt, or has served notice on your debtor, you will not be prevented
from exacting the amount due from your debtor, and in this way prevent
your creditor from doing so. Where, however, an assignment has been made of
your rights of action, you will be released by the novation, and will
have no reason to apprehend that your creditor will not collect the
debt, because the party in question is his client, as you were released
from liability for it through the novation having been confirmed by
the verbal obligation. Published on the fifth
of the Ides of June, during the Consulate of Gordian and Aviola,
240. 4. The Same Emperor
to Stratonicus. Your attorney did not
deprive you of your right of action, if, when you commissioned him
to collect the money which the parties against whom you have filed
your petition owed you, and he, having accepted a part of the debt,
released them from payment of the remainder, as he had no right to
make a novation without your consent, nor could he release them from
liability for what they did not pay. Published on the Ides
of November, during the Consulate of Gordian and Aviola, 240. 5. The Emperors
Diocletian and Maximian to Septimia. If your father, whom
you say that you have succeeded, promised by a stipulation to pay
a certain sum of money to the creditor, and receive from him in return
a claim on Alexander, who was indebted to him, although Alexander
dishonestly refused to pay him, still, it would be dishonorable for
you to refuse payment of the amount promised by your father. 6. The Same Emperors
and Caesars to Dertiparus. A person cannot, against
his consent, be delegated to the creditor of
his creditor. Ordered on the twelfth
of the Kalends of November, during the Consulate
of the Caesars. 7. The Same Emperors
and Caesars to Zoilus. If Eucarpus, having
been assigned, promised to pay you a sum of money, or has acknowledged
the debt, he can be sued in his own name, otherwise you will gain
nothing by proceeding against him in the name of your debtor, who
was bound by a written obligation. Ordered on the seventh
of the Kalends of January, during the Consulate of the Caesars. 8. The Emperor Justinian
to the Senate. We, desiring to amend
the harmful rules which apply to novations, and to dispose of the
ambiguities of the ancient law, do hereby order that, if anyone should
offer another person, or change any one of those who are liable, or
accept a pledge, or diminish or increase the amount of the obligation,
or extend or shorten the time specified, or accept security of a later
date, or perform any of those acts by which, in the opinion of the
ancient legal authorities, novations were created, no change whatever
will thereby be made in the former claim, but every provision made
in the first place will stand, and anything subsequently done will
be considered as supplementary to the same, unless it plainly cancelled
the former obligation, and expressly stated that the second one should
take the place of that previously made. And,
generally speaking, We decree that novation is effected rather by
the intention than by law, and if it is not stated in so many words
that there should be no innovation,
it shall not take place; for We wish novations to be created in
the course of business transactions, and not merely through the utterance
of words which have no connection with them. Given at Constantinople, on the eleventh of the Kalends of August, during the Consulate of Lampadius and Orestes, 530. Title
43. Concerning payments and releases. He who owes money on
several debts to the same creditor has the right, at the time of payment,
to state upon which one the money shall be credited. If the debtor
does not do this, he who receives the money shall have the choice
of applying the amount to whichever claim he pleases. If neither one
of them should express his wishes in this respect, the sum paid shall
first be applied to the interest, and afterwards to the principal. Published on the second
of the Nones of November, during the Consulate of the two Aspers,
213. 2. The Emperor Alexander
to Bassa. It is unquestionably
the law that sureties are released whenever the Treasury succeeds
(even under different rights) the creditor or the debtor. My procurators
will see that this rule is observed so far as you personally are concerned. Published on the Kalends
of July, during the Consulate of Lupus and Maximus, 233. 3. The Emperor Gordian
to Apollonius. If you borrowed money
from a slave who had the free administration of his peculium, and
you paid the debt before he was deprived of his peculium, or
before you were aware that this had been done, you will be released
from liability for payment. Published on the fifth
of the Kalends of October, during the Consulate of Pius and
Pontianus, 239. 4. The Same Emperor
to Rufina. It makes no difference
whether you have paid the money which you have borrowed to your creditor
himself, or with his consent to his slave, for although the creditor
may have died before the slave rendered an account of the payment,
the force of an extinguished obligation cannot be renewed. Published on the second
of the Ides of October, during the Consulate of Pius and Pontianus,
239. 5. The Same Emperor
to Celsus. You have no right of
action against another creditor on the ground that, having tendered
him the amount of the debt, you desired his obligation
to be transferred to you, as you do not state that you purchased the
claim from him, although where payment is made by another in the name
of the debtor, the obligation is ordinarily extinguished. Published on the fifteenth
of the Kalends of November, during the
Consulate of Pius and Pontianus, 239. 6. The Same Emperor
to Alexander. If a compromise was
made between your father and those whom you allege to have been his
debtors, and this was not done with reference to a lawsuit, the issue
of which was doubtful, and your father only received a part of the
debt, but acknowledged that he had received it all, he did not (having
given a receipt or made a donation) by doing so release those who
had verbally bound themselves for the payment of the balance, and
his right to the recovery of the remainder of the debt remains unimpaired. Published on the third
of the Ides of February, during the Consulate of Gordian and
Aviola, 240. 7. The Emperor Philip
and the Caesar Philip to Antiochus. It is clear that interest
cannot be claimed on that part of a debt the right to which has been
extinguished by set-off. Published on the fifth
of the Kalends of August, during the Consulate of Peregrinus
and Aemilianus, 245. 8. The Same Emperor
and Caesar to Rufus. The rule of practice
does not permit the annual payment of interest, which was agreed to
be made in a certain city, to be paid elsewhere, unless some good
reason exists for this being done. Published on the fifth
of the Ides of May, during the Consulate of Philip and Titian,
246. 9. The Emperors
Diocletian and Maximian to Cassius. It is clear that a
release from liability for a debt takes place where the entire sum
of money due is sealed up and deposited, in accordance with the legal
formalities required, but in order for the tender of the amount of
the debt to effect a release of liability, it should be made in the
same place where the money is due. Published on the fifth
of the Ides of May, during the Consulate of Maximus and Acquilinus,
286. 10. The Same Emperors and Caesars to Ambrosius. It is settled that
the heirs of one who, being over twenty-five years of age, legally
gave certain slaves in satisfaction of a debt, cannot claim
them. Ordered at Byzantium,
on the fifth of the Ides of April, during the Consulate
of the above-mentioned Emperors. 11. The Same Emperors
and Caesars to Capitolina. If your husband received
a certain sum of money from your debtors on account of an obligation
due to you, and you were under the age of
twenty-five years, and did not give your consent to the transaction,
your rights will not be prejudiced to any extent, unless after you
attained your majority you ratified the payment which was made. Ordered at Heraclia,
on the fifth of the Kalends of May, during the Consulate of
the above-mentioned Emperors. 12. The Same Emperors
and Caesars to Eutychian. Anyone who pays a debt
to a third party without the consent or knowledge of his creditor
does not release himself from the obligation. Where, however, this
was done by the direction of the creditor, or if he afterwards ratified
the payment which was made, the debtor will be entitled to a release,
just as if he had paid the creditor himself. Ordered on the third
of the Ides of May, during the Consulate of the above-mentioned
Emperors. 13. The Same Emperors
and Caesars to Philotimus. If, by means of a receipt,
and not by a novation made under a stipulation, you released a man
who was bound under the terms of a mandate, and you erroneously stated
in writing that you had received the entire sum to which you were
entitled, the obligation will not be extinguished by this appearance
of the truth. Ordered on the sixth
of the Kalends of June, during the Consulate of the above-mentioned
Emperors. 14. The Same Emperors
and Caesars to Cohorta. The acknowledgment
of money paid, by means of an instrument in writing, is better proof
of the transaction than where the documentary evidence of the loan
which was made has been returned. Ordered on the fifth
of the Ides of July, during the Consulate of the above-mentioned
Emperors. 15. The Same Emperors
and Caesars to Quartinus. Your rights are in
no way affected for the reason that (as you allege) the evidence of
the debt was returned to your debtor. Therefore, if you can legally
prove the existence of this obligation by any evidence whatsoever,
the judge will compel the payment of the debt which is legally due
by the debtor who did not obtain a release from liability by an act
of this kind. Ordered on the fifth
of the Kalends of September, during the Consulate of the above-mentioned
Emperors. 16. The Same Emperors
and Caesars to Charidemus. The rule of law does
not permit him from whom you have borrowed money to accept, against
his will, an obligation due from your debtor. 17. The Same Emperors
and Caesars to Cassius. It is a clear rule
of law that an obligation is extinguished just as much through payment
by another party for the debtor, as where with the consent of the
creditor himself property is transferred to him instead of payment
being made of the money which is due. Ordered at Sirmium,
on the Kalends of December, during the Consulate of the above-mentioned
Emperors. 18. The Same Emperors
and Caesars to Domitius. An inquiry into the
truth cannot be prevented for the reason that you allege that the
papers drawn up by your attorney were received, and restored to you
by his heir, with the statement of your attorney to the effect that
nothing is due to the creditors, as it is possible that the said creditors
have been satisfied by payment, not with your money, but with that
of him whom you directed to transact the business. Ordered on the Ides
of February, during the Consulate of the Caesars. 19. The Same Emperors
and Caesars to Diogenes. If you have paid your
creditor the money you borrowed through her slave, acting as her agent,
and appointed by her to collect her debts, no loss can result to you
if the receipt for the same is found to be void. It would be otherwise,
however, if you had paid a slave not authorized to receive the money,
and you would not be released from liability to an action brought
by his mistress. Ordered on the fifth
of the Ides of October, during the Consulate of
the Caesars. 20. The Same Emperors
and Caesars to Eucrates. When a creditor has
consented to accept the services of a certain slave in payment for
money loaned, after the terms of the agreement have been complied
with, its provision with reference to the return of the slave should
be observed. Ordered at Adrianople,
on the fifth of the Kalends of November, during the Consulate
of the Caesars. 21. The Same Emperors and Caesars to Rufus. It makes a great deal
of difference whether, in the hope of future payment, you stated that
you had received the amount mentioned in the
rescript, or whether you accepted, by way of compromise, a smaller
sum than you were entitled to, and was stated in the receipt; for
in the former instance, the right to collect the balance remains unimpaired,
but in the latter, it is proper that the compromise made by common
consent should stand. Ordered on the third
of the Nones of December, during the Consulate of the Caesars. 22. The Same Emperors
and Caesars to Gratus. It is of no consequence
whether or not your note was erased, that is to say, cancelled, if
you can prove that payment of the debt was once made to him who had
the right to collect the same. Ordered on the fifth
of the Ides of December, during the Consulate of the Caesars. 23. The Same Emperors
and Caesars to Vacius. Where Auxenon sent
a letter to Aristo, directing him to pay you a sum of money, which
he owed to him, and you wrote in reply that you had received the amount
of the debt from Aristo, without the mandate having yet been complied
with, the right to collect the debt remains unimpaired, and nothing
can prevent its recovery by law. Ordered at Nicomedia,
on the fifteenth of the Kalends of January, during the Consulate
of the Caesars. 24. The Same Emperors
and Caesars to Rufinus. As you acknowledge
that you have, as provided by the agreement, transferred the land
in question to Evander in satisfaction of the money which you borrowed
from him, you cannot legally claim that he is liable to you for the
results of his industry, or for any profit derived from some accidental
circumstance; for if the land should depreciate in value, you would
certainly not ask to be permitted to share the loss. Ordered at Nicomedia,
on the seventh of the Kalends of January, during the Consulate
of the Caesars. 25. The Same Emperors
and Caesars to Aurelian. The burden of proof
of payment lies upon the party making the allegation, and when this
is done, you can bring suit for the recovery of the note. Ordered at Nicomedia, on the third of the Kalends of January, during the Consulate of the Caesars. Title
44. Concerning verbal releases. I have already written
to you that you can inquire of the judge whether your sister released
her debtor by the authority of her guardian, and in compliance with
the ordinary formalities. Therefore, if the adverse party continues
to demand a debt which was paid, you can use the proper means to defend
yourself. Published on the third
of the Ides of February, during the Consulate of the two Aspers,
213. 2. The Emperors
Diocletian and Maximian, and the Caesars, to Clarus. If, by giving him a
receipt, you released your debtor on account of a novation made by
means of a gift, you are deprived of every cause of
action. Ordered on the sixth
of the Kalends of January, during the Consulate of the above-mentioned
Emperors and Caesars. 3. The Same Emperors
and Caesars to Demetria. When both the obligation
and the receipt have been extinguished by the Aquilian stipulation,
under an agreement, he who has no good cause for restitution is precluded
from any further legal action. Ordered on the fifth of the Kalends of December, during the Consulate of the Caesars. Title
45. Concerning
evictions. The purchaser of an
estate can, at his own risk and expense, recover property belonging
to it from those in possession. For it is settled that when an estate
has been legally sold, eviction is not guaranteed with reference to
individual articles of property composing the said estate, unless
an express agreement to that effect has been made between the contracting
parties. Published on the sixth
of the Kalends of March, during the Consulate of Severus, Consul
for the third time, and Victorinus, 201. 2. The Same Emperors
to Quarta. If, when your grandfather
gave you the land in question, he guaranteed you against eviction
of the same, you can proceed against your co-heirs under the terms
of the stipulation, on account of the eviction of the land aforesaid,
that is to say, in proportion of the interest of each of them in the
estate. It is certain, however, that if the donor had only made a
mere agreement without consideration concerning said eviction, he
would not be bound by it. Published on the second
of the Kalends of March, during the second Consulate of Antoninus
and Geta, 206. 3. The Same Emperors
to Aurelian. Anyone who purchases
property, and afterwards obtains possession of it, cannot, as long
as he is not evicted, bring suit against the vendor
on the ground that he is said to have sold him property which belonged
to another, or was encumbered. Published on the eighth
of the Kalends of August, during the Consulate of Faustinus
and Rufinus, 311. 4. The Emperor Antoninus
to Georgius. If land has been transferred
to you in satisfaction of a debt, and it was previously hypothecated
to other creditors, the condition of the encumbrance is not altered.
Therefore, if you should be evicted on this account, a praetorian
action will lie in your favor against the debtor, for a contract of
this kind resembles one of sale. Published on the eleventh
of the Kalends of August, during the Consulate of the two Aspers,
213. 5. The Same Emperor
to Patronia. If, among the lands
which you have purchased, one tract, encumbered by the vendor, has
not yet been transferred to you, you can bring suit on the ground
of purchase to compel its release by the creditor. The result will
be the same if you should plead an exception based on fraud against
the vendor, after he has brought an action on sale to recover the
price of the land. Published on the fifteenth
of the Kalends of October, during the Consulate of the two
Aspers, 213. 6. The Emperor Alexander
to Octavius. There is no doubt that
if the vendor did not expressly guarantee you against eviction, an
action of purchase will lie, if eviction should take place. Published on the eighth
of the Ides of March, during the Consulate of Alexander, 223. 7. The Same Emperor
to Hilarian. There is no doubt that
when the property is evicted, and satisfaction cannot be obtained
from the vendor, suit can be brought against his surety because of
the eviction, even if he was not aware that it had taken place. Published on the third
of the Nones of April, during the Consulate of Alexander, 223. 8. The Same Emperor
to Clementinus. If the purchaser of
land should be evicted, he will have no right of action under a stipulation,
or for double damages, or of purchase, against either the vendor or
his surety, unless he has previously served notice on the vendor or
his heir. But where the purchaser does not appear in court, or has
judgment unjustly rendered against him during the absence of the vendor
or his surety, he will have no recourse against them afterwards. Published on the eighth
of the Ides of December, during the Consulate of Alexander,
223. 9. The Same Emperor
to Terentius. Where a controversy
is raised by anyone with reference to land which you state you purchased
in good faith, notify the vendor or his heir, and if you gain the
case, you will have what you purchased. If, however, you should be
evicted, you can recover damages from the vendor, or his heir, and
the expenses incurred by you in the improvement of the property which
you purchased will also be included. Published on the eleventh
of the Kalends of January, during the Consulate of Alexander,
223. 10. The Same Emperor
to Largus. If the vendor established
the boundaries of the land, and fixed a limit which no one should
pass, and any of the said land should be evicted, it will be at the
risk of the vendor. Hence, if he sold the land with the boundaries
which he himself established, the expense of any litigation with reference
to them must be borne by him. Published on the seventh
of the Kalends of December, during the Consulate of Maximus,
Consul for the second time, and Aelianus, 224. 11. The Same Emperor
to Clement. He whom you accepted
as surety for your vendor can be legally barred by an exception on
the ground of fraud if he raises a controversy in his own name, stating
that he, through the agency of his wife, purchased the land in question
before you did, as he gave his consent to the sale, and by so doing,
rendered himself responsible for eviction. Published on the Nones
of February, during the Consulate of Pompeianus and Pelignus,
232. 12. The Emperor
Gordian to Philip. If a slave whom you
purchased should obtain his freedom, and it was agreed when you bought
him that if any question should arise on this point, even if he was
not yet evicted, you could recover the price you paid for him, the
Governor of the province, after having ascertained that the price
should be refunded to you, will order this to be done. Published on the seventh
of the Ides of March, during the Consulate of Gordian and Aviola,
240. 13. The Same Emperor
to Zoilus. When, as the result
of a judicial decision, pledges have been seized by the authority
of the judge having jurisdiction of the case, and you purchased those
you mention, your right to the same will be questioned to no purpose
by the party against whom judgment was rendered, or his heir, as it
has very properly been held that where eviction of property is obtained
by anyone else, an action should be granted against those who had
the benefit of the price. Published on the sixteenth
of the Kalends of June, during the Consulate of Gordian and
Aviola, 240. 14. The Same Emperor
to Secundinus. Whether the possession
of the land belonging to the vendor and his son and heir ineffectually
raises a question as to its ownership, or whether it did not belong
to the father, but to the son himself, who can claim it by hereditary
right, he cannot bring about a controversy with reference to the title. Published on the fourteenth
of the Kalends of August, during the Consulate of Gordian and
Aviola, 240. 15. The Emperor
Philip to Menander. If you lost your case,
not through the injustice of the judge, but in consequence of the
application of a legal principle, you can formally establish your
right to the property pledged as a guarantee against eviction. Published on the Kalends
of August, . . . . 16. The Emperors
Diocletian and Maximian to Alexander and Diogenes. The Governor of the
province will examine the question of the purchase of the land, and
if he should ascertain that a portion of the same belongs to the adverse
party, he will order that the expenses, which it is proved you have
incurred in improving the property, be refunded to you, after an account
has been rendered of the profits. The vendor, however, should be sued
for the price of the part which was evicted, and not he who actually
evicted the ownership of the premises. Published on the tenth
of the Kalends of July, during the Consulate of Diocletian,
Consul for the fourth time, and Maximian, Consul for the third time,
290. 17. The Same Emperors
to Mutianus. If, when a question
arose with reference to a slave whom you purchased, you notified the
vendor of this fact, and did not surrender the said slave until after
a judicial decision had been rendered against you, the Governor of
the province will, in accordance with law, fix the amount of the damage
which you allege you have sustained. Published on the fifth
of the Ides of November, during the Consulate of Diocletian,
Consul for the fourth time, and Maximian, Consul for the third time,
290. 18. The Same Emperors
and Caesars to Eutychius. When a question arises
with reference to the status of a slave who was sold to you, and,
after you have complied with the formalities prescribed by law, the
decision should be in favor of his freedom, and you purchased him
while ignorant of his condition, you can, without any doubt, proceed
on the ground of eviction against the vendor, his sureties, or their
heirs. If the decision should declare him to be a slave, you understand
that you will have no recourse against the vendor. 19. The Same Emperors
and Caesars to Theodore. If you sold the land
which was encumbered, and the purchasers were able to protect themselves
by the ordinary prescription of long time, you need not fear the danger
of eviction. Ordered on the second
of the Kalends of May, during the Consulate of the above-mentioned
Emperors. 20. The Same Emperors
and Caesars to Solidus and Others. If your parents sold
certain slaves, and the question of their ownership was raised against
the purchasers, you will not be prevented from appearing and defending
the case. Where, however, the slaves have already been evicted, and you did not
take an appeal, your demand that the case should be revived is, so
far as you are concerned, contrary to law. If an action on the ground
of eviction is brought against you, and it is proved that notice was
given to enable you to make a defence, you are aware to what extent
you can protect yourselves. Ordered on the sixth
of the Kalends of July, during the Consulate of
the above-mentioned Emperors. 21. The Same Emperors
and Caesars to Heliodorus. The action of purchase
is not barred by the prescription of long time even though it should
be proved that a very extended period has elapsed since the eviction
of the property. Therefore if the slave, whom you state you purchased,
is now proclaimed to be free, you should summon the vendor or his
heir, in order that they may assist you in conducting the suit. If,
however, it should have been decided that the man was free, and not
a slave, and it is proved that you were not released from the risk
of eviction, the Governor of the province (if the case has not been
heard) will see that you are indemnified. Ordered on the eleventh
of the Kalends of August, during the Consulate of the above-mentioned
Emperors. 22. The Same Emperors and Caesars to Julius. As you allege that
the land was sold to you by the vendor as being unencumbered, but
it was not, and you paid the amount of a former obligation which was
due, it is clear that the stipulation which you say provided for your
indemnity with reference to the property sold should be carried into
effect. Ordered on the seventh
of the Kalends of September, during the Consulate of the above-mentioned
Emperors. 23. The Same Emperors and Caesars to Eustochia. As the heirs of a vendor
can be held liable in case of eviction, if the City of Thessalonica
attempts to obtain by law the property which you purchased on the
ground that it was pledged to it, notify the heirs of the vendor,
no matter in what degree they may be, to assist in the conduct of
the case. Whether they were present or absent at the time of the eviction
of the land which was purchased, it is a well-known fact that they
will be liable to the extent of your interest in not having
it evicted, and not for the amount of the price which you paid, unless
it was otherwise agreed. Ordered at Sirmium,
on the second of the Kalends of January, during the Consulate
of the above-mentioned Emperors. 24. The Same Emperors
and Caesars to Eutychius. If a question should
arise as to the title of the property disposed of, after the sale
has been concluded, but before the price was paid, or the slaves who
were sold have been declared to be free (as in this instance), the
eviction relates back to the beginning of the contract, and it is
declared by the authority of the law that if the purchaser is not
offered enough to satisfy his claim, he cannot be compelled to pay
the balance of the price. Therefore, after a part of the price has
been paid, as you allege that you were notified by another person
not to complete the purchase, as the house which you bought was pledged
to him, the judge will see that you are paid what you are legally
entitled to under the contract of sale. Ordered at Sirmium,
on the sixth of the Kalends of February, during the Consulate
of the Caesars. 25. The Same Emperors
and Caesars to Saturnina. If Saturninus sold
you a female slave of whose condition he was ignorant, who now maintains
that she is free, and she should be decided to be free, you can sue
the vendor for double damages under the stipulation; or you can proceed
by an action on purchase against him for the damage which you may
have sustained. Ordered on the Ides
of February, during the Consulate of the abovementioned Emperors. 26. The Same Emperors
and Caesars to Neo. If anyone sold you
a slave who afterwards died, the vendor cannot be sued by you, as
your risk of eviction is at an end. Ordered at Sirmium,
on the second of the Kalends of April, during the Consulate
of the Caesars. 27. The Same Emperors
and Caesars to Theophilus. If Athenocles purchased
land belonging to another, knowing that this was the case, or that
it was encumbered, he cannot bring suit on the ground of eviction,
because, contrary to the rules of law, he claims that he paid a consideration.
If, however, he was ignorant of the facts, the law does not oppose
your demand that the purchase money should be refunded. Ordered on the fifteenth
of the Kalends of October, during the Consulate of the Caesars. 28. The Same Emperors and Caesars to Maximian and Others. There is no doubt that
the rights of the vendor can be exercised by the purchaser. Therefore,
if your right to the ownership of the property
is questioned, you can avail yourself of the same means of defence
as the vendor could make use of. Ordered on the third
of the Nones of October, during the Consulate of the Caesars. 29. The Same Emperors
and Caesars to Rhesus. If your mother gave
the curators of your brother certain lands in exchange for others,
and afterwards they were notified to defend the title, or were evicted
when they did not have power to make a defence; it is reasonable that
you should have a right to sue them for damages. Ordered at Nicomedia,
during the Ides of December, during the Consulate of the Caesars. 30. The Same Emperors
and Caesars to Hastius. He who purchased a
slave from your mother cannot be presumed to have had knowledge that
he belonged to another, by the mere fact that he stipulated for double
damages in case of eviction, nor will his reputation suffer and he
be considered a fraudulent purchaser on this account. You can, however,
prove this by other evidence, if you desire to
do so. Ordered on the Ides
of December, during the Consulate of the above-mentioned
Emperors. 31. The Same Emperors
and Caesars to Agatho. The heir of the surety
for the property on account of which the deceased rendered himself
liable to the purchaser is not prevented from claiming the ownership
of it in his own name, that is to say, while the action for eviction
is still pending. Ordered on the eighteenth of the Kalends of January, during the Consulate of the Caesars. Title
46. A creditor is not responsible for eviction. As My procurator sold
the land referred to by the right of a creditor, on account of debts
due to the Treasury, he is not liable for eviction, and a private
creditor enjoys the same advantage, unless this was expressly renounced
by him. Where, however,
the Treasury succeeded to the rights of another creditor, the title
of the purchaser cannot legally be disputed in the name of the Treasury,
whether his claim was preferred when he sold the property, or whether
it was not, as he who sells property which is pledged must prove that
his claim is prior to that of all other creditors. Published on the fifteenth
of the Kalends of November, during the Consulate of Maximus,
Consul for the second time, and Aelianus, 224. 2. The Emperor Gordian
to Sabina. If your father purchased
from a creditor lands which were encumbered by the right of pledge,
and they are evicted, you have a right of action against the vendor,
if at the time she sold them she guaranteed the title in case of eviction,
or you can bring suit on the ground of fraud, if she knew that the
title to the property was defective, and sold it to your father, whom
you succeeded as heir. For as a contract of this kind does not, in
case of eviction, bind a creditor who is ignorant of the facts, so
it does not release one who commits a fraud, or is guilty of deception. Published on the seventh of the Ides of April, during the Consulate of Sabinus, Consul for the second time, and Venustus, 241. Title
47. Concerning paternal control. If you allege that
your son is under your control, the Governor of the province will
determine whether he ought to hear you, as you have for a long time
permitted his affairs to be transacted as those of the head of a family,
by the persons appointed his guardians under his mother's will. 2. The Emperor Antoninus
to Maronia. Whatever property you
have obtained while under the control of your father belongs to him,
excepting such as he cannot legally acquire. Published on the sixteenth
of the Kalends of March, during the Consulate of Lsetus and
Cerealis, 216. 3. The Emperor Alexander
to Artemidorus. While your son is under
your control, he cannot alienate any property which he has acquired
for you. If he should not show you the respect due to a father, you
will not be prevented from punishing him by the right of paternal
authority, and you can use even a harsher remedy if he should persevere
in his obstinacy, for having brought him before the Governor of the
province, the latter will impose the sentence which you desire. Published on the sixth
of the Ides of December, during the Consulate of Albinus and
Maximus, 228. 4. The Emperors
Valerian and Gallienus to Cala. It seems to be more
proper for the disputes which have arisen between you and your children
to be settled at home. If, however, the matter is of such a nature
that you deem it necessary to have recourse to the law in order to
punish them for the wrong which they have inflicted upon you, the
Governor of the province, if applied to, will order what is usually
prescribed by law with reference to pecuniary disputes, and will compel
your children to show you the respect which is due
to their mother, and if he should ascertain that their disgraceful
conduct has proceeded to the extent of serious injury, he will severely
punish their want of filial affection. Published on the fifteenth
of the Kalends of June, during the Consulate of Aemilianus
and Bassus. 5. The Emperors
Diocletian and Maximian to Donatus. If your daughter does
not show you proper respect, but also refuses to furnish you with
the necessaries of life, she can be compelled to do so by the Governor
of the province. Published on the Kalends
of March, during the Consulate of Diocletian, Consul for the third
time, and Maximian, 287. 6. The Same Emperors
to Hermogenes. Repudiation, which
was employed by the Greeks for the purpose of being rid of their children,
and was styled apoceryxis,
is not recognized by the Roman laws. Published on the seventeenth
of the Kalends of December, during the Consulate of Maximus,
Consul for the second time, and Januarius. 7. The Same Emperors
and Caesars to Dupliana. If your husband, although
a soldier, was still under the control of his father, and himself
had a son in lawful marriage, there is no doubt that he will remain
subject to the authority of his grandfather. Ordered on the second
of the Nones of April, during the Consulate of the Caesars. 8. The Same Emperors and Caesars to Aemiliana. Freedmen are not prevented
from having their children, born in lawful marriage after they had
obtained their liberty, under their control. Ordered on the sixteenth
of the Kalends of May, during the Consulate of the Caesars. 9. The Same Emperors
and Caesars to Niconagoras. The Decrees of the
Senate enacted with reference to the acknowledgment of offspring clearly
set forth that no one can deny his child, as is shown by the penalty
prescribed, as well as the prejudicial action authorized by the Perpetual
Edict, and the fact that support can be demanded before the Governor
by a child over three years of age, if applied for in its own name. Ordered at Sirmium,
on the fifth of the Kalends of May, during the Consulate of
the Caesars. 10. The Emperor
Constantine to Maximus, Prefect of the City. Such importance was
attached to liberty by our ancestors that fathers, who in former times
had the right of life and death over their children, were not permitted
to deprive them of their freedom. Given at Thessalonica, on the fifteenth of the Kalends of June, during the Consulate of Severus and Rufinus, 323. Title
48. Concerning
adoptions. Those who are subject
to the power of others cannot be adopted under the Civil Law, unless
before a magistrate who has complete jurisdiction. Published on the Kalends
of June, during the Consulate of Gordian and Aviola, 240. 2. The Emperors
Diocletian and Maximian, and the Caesars, to Timothy. If the blood-relatives
of the child under the age of puberty, whom you desire to arrogate
as your natural son, consent to this before the Governor of the province,
you can have him as your son, but a fourth part of your estate must
be left to him by your last will or given to him by you at the time
of his emancipation, and security with reference to his patrimony
shall be provided with proper sureties in the presence of a public
official, in order that you may not, under the pretext of adoption,
seize his property, which should be diligently preserved by you for
his benefit. Arrogation
granted by the indulgence of the Emperor, and carried out before the
Praetor or the Governor, has the same validity that it formerly had
when, under the ancient law, it took place in the presence of the
people. Published on the fifth
of the Ides of March, during the Consulate of Maximus, Consul
for the second time, and Aquilinus, 286. 3. The Same Emperors
to Martianus. As you state that the
person whom you desire to arrogate is your freedman, and you do not
set forth in your petition any good cause for doing so, that is to
say, that you take this step for the reason that you have no children,
you are advised that the authority of the law refuses your request. Published on the sixteenth
of the Kalends of July, during the Consulate of Maximus and
Aquilinus, 286. 4. The Same Emperors
and Caesars to Proculianus. Adoption should not
be made by means of private documents, even though they may be acknowledged
before a notary, but the ceremony with all the formalities required
by law usually takes place in the presence of the Governor. Published on the Kalends
of September, during the Consulate of Diocletian, Consul for the
fourth time, and Maximian, Consul for the third time, 290. 5. The Same Emperors
and Caesars to Syra. It is certain that
a woman cannot arrogate, as she cannot have children under her control.
However, as you desire the privilege of having your stepson take the
place of your lawful offspring, as a consolation for the children
whom you have lost, We grant your request in conformity with what
We have already provided on this point, and hence We permit you to
have your stepson occupy the position of your natural and legitimate
son just as if he had been born to you. Published on the third
of the Nones of December, during the Consulate of Tiberianus
and Dio, 291. 6. The Same Emperors
and Caesars to Melianus. The arrogation of those
who are their own masters cannot be effected either in this Imperial
City, or in the provinces, unless under a rescript of the Emperor. Published at Byzantium,
on the sixth of the Nones of April, during the Consulate of
the Caesars. 7. The Same Emperors
and Caesars to Atticus. Anyone who has legally
been given in adoption to the resident of another town than that in
which he resides does not thereby change his citizenship, and therefore
you will see that your right to obtain public honors and offices in
your birthplace and your duty to discharge them is not affected by
adoption. Ordered at Sirmium,
on the eleventh of the Kalends of February, during the Consulate
of the Caesars. 8. The Same Emperors
and Caesars to Isio. The patron of a mother
is not forbidden to adopt the daughter of the latter, when the father,
under whose control she is, gives her in adoption. The arrogation
of a woman who is her own mistress, however, can never take place,
except by virtue of an Imperial Rescript. Ordered on the fifth
of the Ides of February, during the Consulate of the Caesars. 9. The Same Emperors
and Caesars to Marinus. An adoptive father
is not forbidden to remove his adopted son from his family by the
solemn act of emancipation, even when the adoption was granted by
Our indulgence. 10. The Emperor
Justinian to Julian, Praetorian Prefect. A doubt arose among
legal authorities in ancient times with reference to children who
are under the control of their fathers, being given in adoption by
the latter to others, whether a child of this kind, if it was passed
over by its natural father, would have a right of action against his
estate on the ground of the will being inofficious. Papinianus denies
him this right of action; Paulus failed to give an opinion on this
point; but Martianus made a distinction, and, in order that the child
might not lose the estate of both fathers, he held that it would be
entitled to the estate if it had not been mentioned in the will of
its natural father, and its adoptive father was poor. Another
inconvenience arises in a case of this kind, for if, after the death
of the natural father, the adoptive father should relinquish
his right of adoption by means
of emancipation, the adopted child would have no hope, as it could
not attack the will of its natural father for the reason that at the
time of the death of the latter it belonged to another family; nor
could it attack that of its adoptive father because it had been removed
from his family by emancipation; and therefore, for the purpose of
disposing of this doubt, and correcting this defect, We decree that
where an adoption of a strange person is made, the rights of the natural
father are, by no means, lost, but he still retains them, just as
if his son had not been transferred to another family. For the tie
of adoption is so fragile that a person can become a son and a stranger
through emancipation, upon the same day. And who would suffer the
rights of a natural father, created by the bond of nature, to be lost
by this species of mockery ? In this instance, permission is given
to the son by the ancient law to oppose his adoption, and he cannot
be compelled to pass into another family without his consent.
Therefore, as We have already stated with reference
to the transfer of a son to a strange father by adoption, the rights
of said son remain unimpaired, so far as an action to declare a will
inofficious is concerned, as well as with reference to all other successions
which are transmitted to children either as heirs at law, or by testamentary
provisions, so that he himself can both be a source of profit to his
natural father, and be entitled to what is due to him from the latter.
If, however, his natural father should have given him in adoption
to his maternal or paternal grandfather, or if he himself, having
been emancipated, should, in like manner, have given his son in adoption
to either his maternal or paternal great-grandfather, for the reason
that, in this instance, the rights of nature and adoption are combined
in one and the same person, the right of the adoptive father will
stand, and be joined to the natural tie by legitimate adoption, and
the son will only consider who is connected with him by nature, and
to whom the law has assigned him by adoption. Under such circumstances,
the opinion of Papinianus shall prevail, and the adoptive son can
direct all his hopes towards his adoptive father, and will not be
permitted to interfere with the estate of his natural father, and
he must manifest filial respect only for his grandfather or great-grandfather,
and acquire for him whatever property can be so acquired, and exist
for his benefit, and he alone shall be considered his father whom
the law created, and whom Nature did not reject. We
do not find that the distinction of Martianus is applicable in this
case, where no suspicion of fraud can be said to exist, as the affection
of a grandfather or a great-grandfather does not permit any such suspicion
to arise, and all matters shall remain as they are, unless the grandfather
or great-grandfather should emancipate his adopted son; for then it
will be necessary for him again to be brought under the authority
of his natural father, as the adoption of any one is annulled by means
of emancipation. (1) But in order that
We may not leave the question of the adoption of a strange person
unregulated by law, We grant permission to an
adoptive father of this kind, that is to say, to a stranger, to leave
his adoptive son nothing by his will, if he should desire to do so;
but if he does leave him anything, it shall be considered as due to
his generosity, and not because he was legally required to do so.
For as We have preserved for the son everything to which he is entitled
by natural law, it is perfectly clear that all property which, in
accordance with Our enactments, can come into the hands of the son
of a family, will be acquired, not by the strange adoptive father,
but by the natural father, so far as the usufruct of the same is concerned,
and shall belong to him as having been acquired by a fictitious and
recent affection, and not through the diminution of his former blood-relationship.
Where, however, the son remains
permanently adopted in this way, without being emancipated, We desire
that the only benefit accruing to him from the adoption shall be that
he cannot be defrauded out of the succession of his adoptive father
if the latter should die intestate, but shall have the advantage of
acquiring the property of his natural father by will. For according
to the ancient laws, the bond of relationship which connected the
son with his natural father was not dissolved by adoption, but the
rights which accrued to him under it were added to certain others,
which he retained under natural law, and he who was legally a member
of the adoptive family remained a blood-relative of the natural family.
For what authority can abolish maternal rights when, even according
to the ancient law, the child had an adoptive father, but no other
mother than the one whom nature had given him? Therefore, We order that a child of this kind shall preserve his natural
rights unimpaired, still, if a stranger, who is his adoptive father,
should die without making a will, he will only be entitled to his
estate as a proper heir, and will have no other lawful rights with
respect to the family of his adoptive father and nothing in common
with it, but will be considered a stranger, so far as the said family
is concerned. (2) When, however,
all adoptive rights are extinguished by emancipation, then there can
be absolutely no claim advanced to the estate of the adoptive father,
if he is a stranger, even though he should die intestate; but the
son shall only recognize his natural father, just as if he had not
been in the first place transferred by adoption. (3) Moreover, the rules
which We have established with reference to other adoptions, We also
prescribe concerning those made ex tribus maribus, by strangers
under the Sabinian Decree of the Senate, for absolutely no difference
should exist between those and other adoptions. (4) What We have already
stated concerning a son given in adoption by his father also applies
to a daughter, a grandson, and a granddaughter, and We extend the
rule to include their descendants of both sexes who are under paternal
control; provided, at the death of their grandfather, they do not
again come under the authority of their father, for if they should
do so (when the grandfather is not required
to leave anything to his grandson or granddaughter), all the rights
relating to adoption remain unimpaired, so far as the child is concerned.
All the provisions of this law
which apply to sons, daughters, grandsons, granddaughters and their
descendants who are under paternal control, have been introduced to
remove any doubt as to what should be decided where there are two
fathers of one child, one bestowed by nature, and the other appointed
by law. (5) Where a man, who
is his own master, gives himself in adoption by Imperial authority,
he still retains intact all his filial rights with respect to his
adoptive father, for, in this instance, no distinction exists between
the two fathers, as when an adopted son becomes the heir of his father
(who is the arrogator) he is added to his family, and all the provisions
which the ancient legislators introduced with reference to an arrogated
son remain intact and unimpaired. Given at Constantinople,
on the Kalends of September, during the fifth Consulate of
Lampadius and Orestes, 530. 11. The Same Emperor
to Julian, Praetorian Prefect. We, desiring to amend,
or rather to abolish the ancient technicalities generally employed
in adoptions, and by means of which three emancipations and two manumissions
usually took place in the case of sons, and a single emancipation
in the case of daughters and other descendants, decree that a father
who desires to give children, who are under his control, in adoption,
shall be permitted to do so without observing the old formalities
connected with emancipations and manumissions, by appearing before
a competent judge, and complying with the ordinary legal requirements,
the person making the adoption as well as the one adopted both being
present, provided the latter does not withhold his consent. Given at Constantinople, on the fifth of the Kalends of November, during the fifth Consulate of Lampadius and Orestes, 530. Title
49. Concerning the emancipation of children. If the law of the town
in which your father emancipated you conferred authority upon the
duumvirs to allow parents born elsewhere to emancipate their children,
the act of your father is valid. Published on the third
of the Nones of December, during the Consulate of Diocletian,
Consul for the fourth time, and Maximian, Consul for the third time,
290. 2. The Same Emperors and Caesars to Gennadia. In the emancipation
of children, as in the case of donations, the truth should rather
be considered than anything stated in writing. Published on the fifth
of the Ides of March, during the Consulate of Tiberianus and
Dio, 291. 3. The Same Emperors
and Caesars to Heliodorus. Children are not released
from paternal authority by mere consent, but by a formal proceeding
or an accident, and inquiry is not made as to the motives which may
have induced the father to emancipate his son, but whether the legal
formalities were observed. Ordered on the fifteenth
of the Kalends of August, during the Consulate of the above-mentioned
Emperors. 4. The Same Emperors
and Caesars to Colona. A grandfather
cannot be compelled to release his granddaughter from his authority,
and it is not Our custom to confer a benefit to another's injury. Given on the Ides
of October, . . . . 5. The Emperor Anastasius
to Constantine, Praetorian Prefect. We order that ascendants,
that is to say a father, a paternal grandfather or great-grandfather,
and other persons of the male sex in degrees further removed, shall
have permission to emancipate children who are under their control,
namely: their sons or daughters, grandsons or granddaughters by their
sons; great-grandsons or great-granddaughters, and all other persons
of both sexes connected with them in the direct descending line, whether
they are absent and away on a journey, or whether they reside in the
same places, provinces, or cities, even if they are not present in
court at the time that they desire to render them independent; and,
under such circumstances, they should petition for a rescript which
shall be recorded and deposited with a competent magistrate having
jurisdiction of emancipation proceedings; and after this has been
done and the deposit and registry made in accordance with the prayer
of the petition, under the authority granted by the rescript, the
emancipation shall obtain full force, and the persons entitled to
this benefit shall be released from the control of others, just as
if they had been emancipated by their parents; provided, however,
the said persons have agreed to the emancipation as proposed by their
fathers, and this has been provided by the testimony of witnesses,
in presence of the same judge or any other whomsoever, either before
the petition was filed and the rescript issued, or afterwards, unless
they are infants, who become their own masters in this way without
their consent. Given at Constantinople,
on the eleventh of the Kalends of August, during the Consulate
of Probus and Avienus Junior, 503. 6. The Emperor Justinian
to John, Praetorian Prefect. As We have observed that numerous vain formalities take place after emancipation, and as the fictitious sale of free persons, as well as much perplexing verbiage and injurious boxes on the ear, for which no reasonable cause exists, We, for the purpose of disposing of all these modes of expression, do order that he who desires to emancipate another shall be granted permission to do so under the Anastasian Law, or to appear before the tribunal of a competent judge, without being provided with an Imperial Rescript, or to apply to other magistrates who have been invested with jurisdiction of emancipation, either expressly by the laws, or in conformity with long-established custom; and release from paternal authority and the observance of all the legitimate rights to which he may be entitled (even though he did not expressly reserve this for himself), his sons or daughters, grandsons or granddaughters, or any of their descendants who may be under his control, and as an act of generosity to give them their peculium, or transfer to them any other property as well as such as they are not permitted to acquire, but of which, in accordance with the terms of Our Constitution, they are entitled to the usufruct; and all these things they can do, the empty formalities of the ancient laws having been abolished by these provisions, as has already been stated. Given at Constantinople, on the Kalends of November, after the Consulate of Lampadius and Orestes, 531. Title
50. Concerning ungrateful children. The laws punish, by
the revocation of emancipation and the deprivation of undeserved freedom,
sons, daughters, and other descendants who have been guilty of disobedience,
or who have inflicted any verbal insult or atrocious injury upon the
parent who emancipated them. Given at Milan, on the twelfth of the Kalends of September, during the Consulate of Lupicinus and Jovian, 367. Title
51. Concerning persons who return by the right of postliminium,
and the ransom of captives from the enemy. A girl born of two
captives in Sarmatia is considered to follow the condition of her
father, if both her parents return to Our territory, for although
she cannot, properly speaking, enjoy the right of postliminium
because she was not a captive, still the return of her parents
restores the girl to her father. If the latter should be killed by
the enemy, she must necessarily be considered to follow the condition
of her mother, who brought her daughter with her. For the fiction
of the Cornelian Law, which grants legal heirs to anyone who dies
in the hands of the enemy, does not apply to one who
is born in their hands, for the reason that her father is considered
to have died at the time when he was captured. Without date or designation
of Consulate. 2. The Emperor Gordian
to Publicianus. Persons who have been
ransomed from the enemy are deemed rather to be pledged than reduced
to a servile condition, until the price of their ransom has been paid;
therefore, if the amount expended for that purpose is given to them
as a donation, it is clear that they are restored to their former
condition. Hence, if
you have married a captive, who was ransomed from the enemy after
she had been released from this condition of natural pledge, you should
have no apprehension with reference to either her condition or that
of your common children. Published on the second
of the Ides of June, during the Consulate of Gordian, Consul
for the second time, and Pompeianus, 242. 3. The Emperors
Diocletian and Maximian to Varus. As you allege that
your relatives have not yet returned under the right of postliminium,
but are still living, and that their property is being fraudulently
squandered by the adverse party, the Governor of the province, if
applied to, will provide for the appointment of a public official
who will take charge of said property, after having furnished proper
security. Published on the fifth
of the Kalends of September, during the Consulate of Diocletian,
Consul for the third time, and Maximian, 287. 4. The Same Emperors
and Caesars to Hermogenes and Others. It has not escaped
Our notice that the estate of a woman, as long as it is not known
whether she is dead, or is held a prisoner by the enemy, cannot be
entered upon by her son, as the property of those who have fallen
into the enemy's hands can only be acquired by the right of succession
from the time when they are known to have died in captivity, and no
compromise can take place, or judgment be rendered, involving the
property of one whose life and fortune are uncertain. Wherefore, after it has been ascertained that
your maternal aunt died in the hands of the enemy, you will be permitted
to obtain possession of her estate under the Praetorian Law, and your
rights will not be prejudiced by any acts which have been wrongfully
performed with reference to the estate, and if you are in the nearest
degree, the whole of it will belong to you. Published on the fifth
of the Kalends of July, during the Consulate of Diocletian,
Consul for the fourth time, and Maximian, Consul for the third time,
290. 5. The Same Emperors
and Caesars to Ursa. As you say that your
son, although not ransomed from the enemy, was, without the execution
of any contract, delivered by the barbarians to the Prefect of the
legion, he will be entitled to the right of postliminium, and
the Governor of the province must immediately order him to be restored
to his former status of a freeborn citizen. Published on the sixteenth
of the Kalends of June, during the Consulate of Diocletian,
Consul for the fourth time, and Maximian, Consul for the third time,
290. 6. The Same Emperors
and Caesars to Justus. As both the right of
postliminium and considerations of public utility demand that
those who have ransomed captives from the enemy should restore them
to their condition of freeborn citizens, after they have received
the amount of their ransom, and you allege that the person who ransomed
you refused to accept the amount of the ransom from you, or from another,
the Governor of the province will compel him, by the employment of
the proper means, to obey the laws, and having received the sum which
he expended by way of ransom, not to further annoy you with regard
to your condition. Published on the Kalends
of February, during the Consulate of Tiberianus and Dio, 291. 7. The Same Emperors
and Caesars to Claudius. We are impelled to
suppress the infamy of a profligate female, and therefore, as you
state that your daughter was captured by the enemy, and after having
been prostituted by the woman who ransomed her, fled to you for the
purpose of preserving her chastity and the honor of her family, if
the Governor of the province should ascertain that the above-mentioned
injury was inflicted upon your daughter by a woman who knew that she
was freeborn, as a person of this kind is unworthy to have the amount
of the ransom refunded on account of the odium attaching to the detestable
profit which she has obtained, even though she may not already have
been fully compensated by what she has gained from the wretchedness
and disgrace of your daughter, you can make a good defence against
the baseness of this wicked woman. Published on the third
of the Nones of February, during the Consulate of Tiberianus
and Dio, 291. 8. The Same Emperors
and Caesars to Matrona. The Governor of the
province will take care that you are no longer kept in slavery, and
he is too intelligent not to know that the status of your children
— whom you allege were born after you were ransomed — should be protected,
as no authorities hold that children born after the ransom of their
parents are liable as pledges, on account of the price which has been
paid for the ransom of their mother. Published on the fifth
of the Ides of February, during the Consulate of Tiberianus
and Dio, 291. 9. The Same Emperors and Caesars to Gregorius. The Lex Cornelia
constitutes a son the proper heir of his father who died during
captivity if, in the meantime, he should return, and provided
that, when he was captured, he was under his father's control. Therefore,
if you can prove before the Governor of the province that you are
entitled to the estate of your father, either by his will or on the
ground of intestacy, he will order the property of the estate to be
delivered to you, unless, after your return, so long a time has elapsed
that your claim will be barred by prescription. Published on the fifth
of the Ides of April, during the Consulate of the above-mentioned
Emperors. 10. The Same Emperors
and Caesars to Apollodora. As free persons captured
by the enemy, who have returned under the law of postliminium,
are restored to their former status, so, likewise, slaves are
returned to their masters. Hence, if the woman whom you mention was
your father's female slave was not ransomed in the course of trade,
having returned, she will again belong to her master, or to the heir
of him who lost her through captivity. Ordered at Adrianople,
on the third of the Kalends of May, during the Consulate of
the Caesars. 11. The Same Emperors
and Caesars to Eutychius. If Sabinus ransomed
you from the enemy in the course of trade, and you were free, and
it is proved that he had released the lien which he had on you by
way of pledge for the ransom, you will not become a freedman, but
will be restored to the condition of a freeborn person, which you
had lost, and you will owe no services to the children of Sabinus. Ordered on the fifteenth
of the Kalends of January, during the Consulate of the above-mentioned
Emperors. 12. The Same Emperors
and Caesars to Quintiana. Persons who have been
captured by the enemy and not ransomed, but liberated by the bravery
of Our soldiers, at once recover the status which they had lost by
the accident of their captivity, and slaves are, moreover, restored
to their owners; for We should hold that those who are taken in this
way are not captured, and it is proper for Our soldiers to be their
protectors, and not their masters. Ordered on the fifth
of the Kalends of January, during the Consulate of the above-mentioned
Emperors. 13. The Same Emperors
and Caesars to Quartina. If he who ransomed
you, a freeborn woman, from the enemy, then married you, it is but
reasonable that you should be released from the pledge for your ransom,
and restored to the condition in which you were born, by the dignity
of marriage, and the hope of future legitimate offspring. Ordered on the fifth
of the Ides of March, during the Consulate of the
Caesars. 14. The Same Emperors
and Caesars to Severa. The right of postliminium
gives a daughter, as heir at law, the estate of her mother, where
the latter died in slavery due to captivity, by
the mere fact of the occurrence; and, in the meantime, We shall not
permit any injury to be done to you by which you may be prevented
from obtaining the property belonging to your mother's estate. Ordered on the sixteenth
of the Kalends of April, during the Consulate of the Caesars. 15. The Same Emperors
and Caesars to Macrotraulus. When a freedman, who
has been captured by the enemy, is ransomed, he can, by virtue of
his free birth, claim for himself any rights that he has in the succession,
even before he has refunded the money expended for his ransom, in
order that he may be able to repay it out of the funds of the estate. 16. The Same Emperors
and Caesars to Basilida. It is settled that,
where the sons of a woman who has been ransomed from captivity (even
though born while she was a captive, of a father who was a slave)
shall, in accordance with the liberal interpretation of the law, enjoy
the freeborn condition of their mother. Ordered on the fifth
of the Kalends of September, during the Consulate of the above-mentioned
Emperors. 17. The Same Emperors
and Caesars to Diogenia. A freeman captured
by the enemy, and afterwards ransomed, recovers his former status
from the time when he refunded the amount of his ransom, or was released
from its payment in any way whatsoever. In this instance, the son
was ransomed by his mother, and, as a contract of this kind is considered
not to have been made for the sake of reward, but through maternal
affection, the intention of receiving the son under the most desirable
conditions at once restores him to his mother, so that he will not
be excused from the performance of civil duties, on account of the
former circumstances of his having been a prisoner of war.
Therefore, as you ransomed your son from the enemy
through motives of pecuniary interest, it is not proper that you should
repent of having done so, and that you should claim any part of the
sum that you paid; you can, however, justly demand from him the dowry
which he owes you. Ordered on the third
of the Kalends of November, during the Consulate of the Caesars. 18. The Same Emperors
and Caesars to Triplinianus. Persons who have been
captured by the enemy, and have returned under the law of postliminium,
are entitled to a direct action to recover any property which
they have lost through the event of their captivity, and whatever
has been lost either by usucaption, release, or non-user shall be
restored to them within the available year by means of the action
to re-establish them in their rights. Published on the twelfth
of the Kalends of December, during the Consulate of the Caesars. 19. The Emperors
Gratian, Valentinian, and Theodosius to the General Severinus. Those whose captivity
was due to necessity are hereby notified that, if they did not go
over to the enemy, but were carried away during a hostile attack,
they should hasten to return to their own country, and that under
the right of postliminium they will receive any property they
formerly possessed in lands, slaves, or other effects, even though
it may be in the possession of Our Treasury. Nor let any of them anticipate
any delay resulting from a contest, as proof will only be required
whether the party in question voluntarily accompanied the barbarians,
or whether he was compelled to go. Given at Rome, on the
sixth of the Kalends of July, during the Consulate of Gratian,
Consul for the fifth time, and Theodosius, 366. 20. The Emperors
Honorius and Theodosius to Theodore, Praetorian Prefect. No one shall detain,
against their will, any of the inhabitants of Our different provinces,
no matter what their sex, condition, or age may be, whom the cruelty
of the barbarians has subjected to captivity, but they shall have
full power to return to their country, if they desire to do so. And,
where any expenditure has been made for clothing or provisions in
their behalf, it should be provided on the ground of humanity, nor
should the return of such supplies be demanded; except, however, where
it is shown that the captives were purchased from the barbarians,
since it is only just that the price paid for their freedom should
be refunded to the purchasers on account of the public welfare; for
by the denial of this right, the prospect of loss may cause the sale
of captives reduced to such necessity, as they should refund to their
purchasers the amount paid for their ransom, or should compensate
them by their labor, or remain in their service during the term of
five years, in return for the benefit conferred upon them, at the
end of which time they will recover their freedom, that is to say,
if they were born free. Therefore, they shall be returned to their
homes upon the terms which We have specified, and, even according
to the opinions of the ancient jurists, all their rights will remain
intact under the law of postliminium. If anyone should attempt to violate this law,
whether he be an agent, a lessee, or an attorney, he shall be sentenced
to the mines, as well as to the penalty of deportation; and if he
is the owner of property he is notified that it will be confiscated
to the Treasury, and that he himself will be liable to deportation.
To the end that this law may be the more readily
enforced, We desire the Christians of neighboring places to cause
it to be carried into effect. And We decree that where cases of this
kind arise, the decurions of adjoining cities shall be notified to
assist in the execution of this Our law; and all Governors are warned
that if they neglect to enforce it, a fine of ten pounds of gold will
be exacted from them, as well as from their subordinate officers. Given on the third of the Ides of December, during the Consulate of Honorius, Consul for the eighth time, and Theodosius, Consul for the third time, 409. Title
52. Concerning the abandonment of children both free and slave, and
concerning those who received newborn children for the purpose of
rearing them. If, without your consent
or knowledge, the child of your female slave or serf has been abandoned,
you will not be prevented from recovering it. Its restitution, however,
provided it is not recovered from a thief, must take place in such
a manner that where anything has been expended for its support, or
instruction in a trade, you must refund the amount. Published on the third
of the Kalends of June, during the Consulate of Julian, Consul
for the second time, and Crispinus, 225. 2. The Emperors
Valentinian, Valens, and Gratian to Probus, Praetorian Prefect. Every person should
support his own offspring, and anyone who thinks that he can abandon
his child shall be subjected to the penalty prescribed by law. We
do not give any right to masters or to patrons to recover children
who have been abandoned, when children exposed by them, as it were,
to death, have been rescued through motives of pity, for no one can
say that a child whom he has left to perish belongs to him. Given on the third
of the Nones of March, during the Consulate of Gratianus, Consul
for the third time, and Equitius, 274. 3. The Emperor Justinian
to Demosthenes, Praetorian Prefect. We decree that no one
shall be permitted to claim as his, under the title of ownership,
vassalage, or tenancy, any child born either to freeborn parents,
or to freedmen, or to slaves, who has been abandoned. And We do not
permit those who have taken such children for the purpose of rearing
them to do so with any distinction, so as to bring them up and educate
them, whether they are males or females, in such a way as to hold
them as slaves, freedmen, serfs, or vassals; but children brought
up by men of this kind shall, without distinction, be considered free
and freeborn, and can acquire property for themselves, and transmit
everything which they possess, in any way they may desire, to their
posterity, or to foreign heirs, without being branded with the stigma
of servitude, vassalage, or the restrictions attaching to the conditions
of tenancy or serfdom. Nor
do we concede that those who have received them have any right to
their property, and this law shall be enforced throughout the
entire extent of the Roman Empire.
Nor shall those who, in the first place, have abandoned their children
and perhaps entertained the hope of their death, and rendered their
destiny uncertain, have any right to recover them from the persons
by whom they were rescued, and reduced them to slavery. Nor shall
those who, through motives of compassion, have supported these children,
be allowed to change their minds, and make them slaves, even though,
in the beginning, they took charge of them with this intention, lest
it may appear that what was dictated by benevolence has become merely
a mercenary transaction. These provisions shall be observed, not only by
the illustrious Governors of provinces, but also by the holy Bishops,
the officers of the Governors, the Senators and Defenders of cities,
and all other Civil authorities. Given at Chalcedon, on the fifteenth of the Kalends of October, during the Consulate of Decius, 529. Title
53. What is meant by long-continued custom. The Governor of the province shall, after the case has been heard, decide in accordance with the practice observed in the settlement of controversies of the same description in the town where the suit was brought. For where a custom exists, the reason which established it should be taken into consideration, and the Governor of the province must be careful not to render a judgment which may violate long-established usage. Published on the sixth
of the Kalends of April, during the Consulate of Julian, Consul
for the second time, and Crispinus, 225. 2. The Emperor Constantine
to Proculus. The authority and observance
of long-established custom should not be treated with contempt, but
it should not prevail to the extent of overcoming either reason or
law. Given at Constantinople,
on the seventh of the Kalends of May, during the Consulate
of Constantine, Consul for the fifth time, and Licinius, 319. 3. The Emperors
Leo and Anthemius to Alexander. A custom adopted and
observed steadfastly for a long period of time resembles a law and
obtains the force of one, and therefore We decree that any custom
which has reference to, and is observed by, offices, curiss, cities,
public institutions, or corporate bodies, shall have the effect of
a perpetual law. Given on the seventh of the Ides of September, during the Consulate of Martianus and Zeno, 469. Title
54. Concerning
donations. You understand that
where written instruments conveying the title to slaves, who have
been purchased, have been given and delivered, the donation and transfer
of the slaves themselves are considered to have taken place, and therefore
you can proceed by an action in rem against the donor. Published on the fifth
of the Kalends of July, during the Consulate of Faustinus and
Rufinus, 211. 2. The Emperor Gordian
to Leonis. If, after having been
emancipated, your father assigned to you, as a donation, the right
to collect a claim, the heir of your debtor will in vain allege that
the consent of the latter was necessary to the transfer, as it will
be sufficient if the rights of action for that purpose have been assigned
to you. Published on the second
of the Ides of March, during the Consulate of Gordian, Consul
for the second time, and Pompeianus, 242. 3. The Emperor
Decius to Marcellinus. It has been held, not
without reason, that the right of action to a future expectation can
be transferred with the full consent of the donor. Published on the Nones
of March, during the Consulate of Decius and
Gratus, 251. 4. The Emperor Probus
to Marsia. Your rights cannot
be prejudiced if the taxes were paid by someone to whom the property
was not given, or by his agent, in his name. Published on the fifth
of the Kalends of January, during the Consulate of Messala
and Gratus, 280. 5. The Emperors
Carinus and Numerianus to Flaconilla. If the donation does
not appear to have been made by means of a letter, still, the words
of the will, by which the generosity of the testatrix is confirmed,
no doubt have reference to a trust. Published at Rome,
on the sixth of the Kalends of February, during the Consulate
of Carinus, Consul for the second time, and Numerianus, 284. 6. The Emperors
Diocletian and Maximian to Christiana. It cannot be doubted
that donations are valid, even when made between absent persons, and,
above all, if those upon whom the donations were bestowed have, with
the consent of the donors, acquired possession of the articles donated. Published on the third
of the Ides of February, during the Consulate of Maximus, Consul
for the second time, and Aquilinus, 286. 7. The Same Emperors
and Caesars to Julius. The census return made
by another does not usually prejudice the owner of the property, but
if you consented for your stepson to return your slaves as his, you
will be considered to have given them to him. Published on the Ides
of July, during the Consulate of Diocletian, Consul for the fourth
time, and Maximian, Consul for the third time, 290. 8. The Same Emperors
and Caesars to Flora. If the Governor of
the province should find that you returned the fields in question
to the census in the name of your sons, without the intention of donating
them, he will decide in accordance with what the truth may suggest. Published on the eighth
of the Ides of September, during the Consulate of Diocletian,
Consul for the fourth time, and Maximian, Consul for the third time,
290. 9. The Same Emperors and Caesars to Augustiana. You can, by means of
the action of stipulation, proceed to enforce compliance with the
condition which you prescribed, in the donation of your
property; or you can bring suit for an indeterminate amount, that
is the Actio Prsescriptis Verbis, before the Governor of the
province, who will see that it is fulfilled. Published on the sixteenth
of the Kalends of May, during the Consulate of the above-mentioned
Emperors. 10. The Same Emperors
and Caesars to Hermonia. No one gives either
ignorantly or unwillingly, and therefore if you did not have in your
mind the tract of land which it is stated in the instrument you consented
to donate, you understand that you will not lose what you did not
intend to convey, or did not specially indicate, as the force of truth
is greater than that of any written document. Ordered on the fifth
of the Kalends of May, during the Consulate of the Caesars. 11. The Same Emperors
and Caesars to Sabinus. According to your statement,
you have retained a certain portion of your property, and have transferred
the remainder to him who is under your control, as a donation. It
is a plain rule of law that an act of this kind made in favor of someone
under paternal control is considered as having been done rather as
an evidence of the intention of the father than as a perfect donation.
The assignment of claims in favor of an emancipated son, however,
operates as a complete donation of the rights of action. Ordered on the second
of the Kalends of May, during the Consulate of the Caesars. 12. The Same Emperors
and Caesars to Aurelian. No one can be prevented
from transferring to another, as a donation, his share of any property
which has not yet been divided. Given on the seventeenth
of the Kalends of June, during the Consulate of the above-mentioned
Emperors. 13. The Same Emperors
and Caesars to Urania. If it is proved that
anything was given to you by means of a letter, the brevity of the
document evidencing the donation (if it is proved to have been legally
executed), will not affect your rights in any respect. Given at Sirmium, on
the fifteenth of the Kalends of June, under the Consulate of
the above-mentioned Emperors. 14. The Same Emperors
and Caesars to Ideus. If your son, without
your consent, gave property to his betrothed which belonged to you,
he could not transfer it to her because it was not his. Ordered on the fifteenth
of the Kalends of October, during the Consulate of the above-mentioned
Emperors. 15. The Same Emperors and Caesars to Severa. Liability for debts
due from an estate does not attach to a person who has received any
portion of it by way of donation, but renders the
heir of the entire estate responsible. Therefore, if the land which
you obtained as a donation was not hypothecated to anyone, you need
have no anxiety that either the heirs, the donor, or her creditors,
can legally bring suit against you. Ordered on the fifteenth
of the Kalends of December, during the Consulate of the above-mentioned
Emperors. 16. The Same Emperors and Caesars to Theodore. Old age alone is not
an impediment to making a donation. Given on the fifth of the Kalends
of December, during the Consulate of the above-mentioned Emperors. 17. The Same Emperors
and Caesars to Hermia. Whether you have donated
property to your emancipated sons, or whether they were still under
your control, if, after they became independent, you did not deprive
them of their property donated, and which was in their hands, you
must not flatter yourself that, having changed your mind, you can
deprive them of what you gave them. If,
however, the property which you gave was obtained by them while under
your control, and after their emancipation they kept possession of
it against your consent, you will still retain the ownership of the
same, as they could not have obtained any of your property as long
as they were subject to yeur authority, even though you might have
wished them to do so when they were emancipated, because you subsequently
were unwilling. Ordered on the sixth
of the Kalends of January, during the Consulate of the above-mentioned
Emperors. 18. The Same Emperors
and Caesars to Audianus. If it is proved that
you are released from liability for an action of theft, because the
property in question was donated to you, you need have no apprehensions. Ordered on the fifth
of the Kalends of January, during the Consulate of the above-mentioned
Emperors. 19. The Same Emperors
and Caesars to Alexandria. If your grandmother
has bestowed her own property, as a gift, upon him against whom you
have filed your petition, there is nothing to prevent the gift from
being valid, whether the property was derived from the estate of your
father or your grandfather. Ordered at Sirmium,
on the sixteenth of the Kalends of February, during the Consulate
of the Caesars. 20. The Same Emperors
and Caesars to Helinius. A donation legally
effected is not considered void, even though made by a third party,
if the donor gave her consent. Ordered on the seventh
of the Kalends of February, during the Consulate of the Caesars. 21. The Same Emperors
and Caesars to Antonia. Your grandmother could
not have given you her dowry, which was in the hands of her husband
during her marriage. Ordered on the fifth
of the Ides of March, during the Consulate of the Caesars. 22. The Same Emperors
and Caesars to Diomede. If, as you allege,
you have given your property to your emancipated son under the condition
of his paying your creditors, whether you agreed to this condition
with reference to the property under a stipulation, or by a contract
which was entered into, an action will not lie in favor of your creditors
against your son, under the terms of your agreement, but it can be
brought against you. It is, however, settled that he to whom you have
given certain lands conditionally can have an action for an indeterminate
amount brought against him, to compel him to fulfill the contract
in accordance with the condition prescribed. Ordered at Sirmium,
on the seventh of the Kalends of April, during the Consulate
of the Caesars. 23. The Same Emperors
and Caesars to Olympias. If the person who received
the donation has, under a subsequent agreement, returned to you, as
a gift, the property which you donated to him, the instrument evidencing
the prior donation does not, by any means, annul the one which followed. Ordered on the fifth
of the Kalends of October, during the Consulate of the Caesars. 24. The Same Emperors and Caesars to Macarius. If you were not your
father's heir, it is a perfectly clear rule of law that your rights
cannot be prejudiced by his donation of property which belongs to
you. Published at Antioch,
on the Nones of February, during the Consulate of Diocletian,
Consul for the ninth time, and Maximian, Consul for the eighth time,
304. 25. The Emperor
Constantine to Maximus, Praetorian Prefect. A donation, whether
or not it is direct, or made in anticipation of death, or held in
abeyance because dependent upon a condition, or promised at some specified
time, or regulated by the intention of the donor and donee (to the
extent permitted by the law), should be subject to the following rule,
namely: it must contain only those conditions and agreements which
are authorized by the laws, and only such as are in conformity with
this rule can be accepted, and any contrary to it shall be rejected.
Where the donation has been
evidenced by a written instrument, the name of the donor, the title,
and the description of the property shall be set forth, and this must
not be done either secretly or privately, but be written upon a tablet,
or upon any other kind of material which may
be at hand, either by the donor himself, or by some other person who
is present and has a right to do so; and the document should be registered
after having been drawn up in the presence of a judge, or a magistrate,
whenever the laws require this to be done. Given on the third
of the Nones of February, during the Consulate of Sabinus and
Rufinus, 323. 26. The Same Emperor
to Catulinus, Proconsul of Africa. If anyone should desire
to convey a tract of land to his emancipated minor son before the
latter is able to speak for himself, or hold any property donated
to him, he must comply with all the legal formalities required in
the execution of the instruments of this kind. It has been decided
that a slave, whom the donor may consider suitable, can be introduced,
in order that the property may be acquired by the infant through him. Given on the twelfth
of the Kalends of May, during the Consulate of
Sabinus and Rufinus, 316. 27. The Same Emperor
to Severus, Count of the Spains. We have decreed by
a previously enacted law that donations shall be publicly registered,
and this rule should be especially observed by persons who are merely
related by blood, as anyone can, by means of clandestine and domestic
fraud, readily find an opportunity to feign a transaction, or to revoke
an act which has been lawfully performed. Therefore, as Our law does
not except either children or parents from the necessity of registering
instruments evidencing such donations, what We have already decreed
with reference to their registry will apply to all cases of this description.
It is, however, sufficient for their validity that such acts should
take place everywhere, even when the property is situated in some
other place. Given on the third
of the Nones of May, during the Consulate of Dalmatius and
Zenophilus, 333. 28. The Emperors
Honorius and Theodosius to Monaxius, Praetorian Prefect. Where anyone who donates
property, bestows it by way of dowry, or sells it, retains the usufruct
of the same for himself, he will be considered to have immediately
delivered the property, even if no stipulation has been made on this
point, and nothing else will be required to establish the fact of
its transfer; but, in every instance, the reservation of the usufruct
shall be considered to imply delivery. Given on the second
of the Ides of March, during the Consulate of Honorius, Consul
for the eleventh time, and the Caesar Constantius, Consul for the
second time, 417. 29. The Emperors
Theodosius and Valentinian to Hierius, Praetorian Prefect. It has been decided
that a donation made for the benefit of strangers, and even of persons
who are unknown, is valid. If anything should be donated without the
transaction having been reduced to writing, but all the other legal
formalities have been complied with, it will stand. Given on the eleventh
of the Kalends of May, during the Consulate of Felix and Taurus,
428. 30. The Emperor
Leo to Constantine, Praetorian Prefect. Donations of property
made in this Imperial City, no matter where it may be situated, shall
be recorded with the Master of the Census. Where, however, they are
made in other cities, whether the Governor of the province is absent
or present, or whether the said city has any magistrates or not, or
only a defender resides there, the donor shall have full power to
register the donation of his property, no matter where it may be situated,
either before the Governor of any province, or before a magistrate
or defender of any city, whom he may select; for just as a donation
itself is dependent upon the intention of the donor, so he shall be
permitted to register it in the presence of any of the above-mentioned
officials. Donations of this kind which have been registered in the
different provinces and cities, before any of the officials aforesaid,
shall have incontestable and perpetual validity. Given at Constantinople,
on the fifth of the Nones of March, during the Consulate of
Patricius and Richomer, 459. 31. The Emperor
Zeno to Sebastian, Praetorian Prefect. We decree that it is
not necessary for neighbors or other witnesses to be called in the
case of donations which have been publicly recorded, for the evidence
of private persons is superfluous where public records can be produced.
We also decree that as it is not necessary to record such donations,
if they have been drawn up by a notary or any other person, and are
without the signature of witnesses, as they will still be valid; provided,
however, that the donor himself or someone else, with his consent,
has signed the document as required by law. Donations made without
having been committed to writing are valid, in accordance with the
Constitution of Theodosius and Valentinian, addressed to Hierius,
Prastorian Prefect. Given at Constantinople,
on the Kalends of March, during the Consulate of Ello, 478. 32. The Emperor
Anastasius to Euphemius, Praetorian Prefect. In accordance with
the Constitution of the Divine Leo, We order that donations shall
only be recorded before the illustrious Master of the Census, and
the same rule shall be observed with reference to instruments of this
kind as applies to those which have been drawn up or executed in this
Imperial City; nor shall anyone be permitted to register them either
in the presence of the defenders or magistrates of other cities, or
in any other places whatsoever than the one above mentioned; and those
who resort to this method of registry as well as those who allow it
to be done, and notaries who aid persons with their testimony in any
place or city not authorized by this law (as previously
stated) are hereby notified that, in addition to other penalties,
they will be subject to a fine of twenty pounds of gold. Given on the day before
the Kalends of May, during the Consulate of Paulus, Consul
for the fifth time, 496. 33. The Emperor Justinian to Menna, Praetorian Prefect. We hereby abolish that
perplexing rule under which persons who receive the assignment of
actions as donations are not permitted to transmit them to their heirs,
unless they have already instituted proceedings in court with reference
to the same, or obtained an Imperial Rescript releasing them from
this requirement. For as it is permitted for rights of action attaching
to sales to be transmitted to heirs after assignment, and before issue
has been joined, so We desire that such as have been donated shall
be transferred to them, even though no proceedings have been instituted,
nor any demand made for payment. This rule shall also be applicable
to an attorney appointed to conduct cases of this kind, so that the
person to whom the rights of action have been assigned will not be
prevented from employing an attorney to bring suit, even though issue
has not been joined, or though any legal demand has previously been
made. We decree that
these provisions shall only apply to persons who are known to be living
at this time, and to whom rights of action by means of a donation
have been assigned. For where persons of this kind are dead, We permit
the ancient laws enacted with reference to such assignments to be
observed. Given at Constantinople,
during the month of June, under the second Consulate of the Emperor
Justinian, 528. 34. The Same Emperor to Demosthenes, Praetorian Prefect. We order that every
donation which amounts to three hundred solidi, whether it
be an ordinary one or one made before marriage, shall follow the common
rule, and that their registry shall not be required. Where,
however, a donation is made over and above the amount fixed by law,
it will not be valid, so far as any excess is concerned, but the remainder
which comes within the limits of the law shall continue in full force,
just as if no more had been added to it, which will be considered
not to have been either expressed or implied. Imperial donations,
however, as well as such as are devoted to pious uses are excepted,
for it is reasonable that those made by the sovereign should not be
subjected to the rule requiring registry, but that the Imperial source
from which they are derived establishes their validity, a provision
which has been adopted by Our predecessors as well as by Ourselves. (1) We, however, decree
that donations made for pious uses up to the sum of five hundred solidi
shall be valid without registry, and, moreover, where ante-nuptial
donations are made to adult minors, who are their own mistresses,
no matter what sums they amount to, they shall be valid in accordance
with the provisions of the ancient laws, even though they may not
have been publicly registered. When
the donation did not consist of gold coin, but of movable or immovable
property or such as is capable of moving itself, an appraisement should
be made of the same, and if its value should be equal to that of the
number of solidi prescribed by law it will be valid, and shall
stand without being registered; but where it is found to exceed the
sum specified, and it has not been registered, it will only be void
so far as the surplus is concerned. (2) In order to prevent
any dispute from arising with reference to the transaction between
the donor and the beneficiary of his generosity, We permit him who
is entitled to the larger amount of the property donated to have the
choice of tendering the remainder of what has been appraised to the
person who has the smaller share, so that he may have the whole of
it. If, however, he should not wish to do this, then the property
shall be entirely divided according to the share to which each one
is entitled, if it is possible for this to be done without loss. In
cases of this kind, in which the division cannot advantageously be
made, if the owner of the larger amount is unwilling to offer his
portion to the others, then he who has the smaller share shall be
permitted to tender its value, and obtain the whole of it for himself. (3) Moreover, if anyone
has, at different times, made several donations to the same person,
some of which did not exceed the legitimate amount, although when
all were added the total was more than the sum authorized by law and
appeared to exceed it, they shall not be considered to be united and
form but one sum, and no rule shall be adopted by which the said donations
may be decided to be of no effect, and be revoked as void; but, on
the other hand, they shall be regarded as several in number and distinct,
and each of them shall preserve its character, and not require the
formality of registry. For as different opinions upon this point were
held by the ancient authorities, some of them thinking that the donations
were several in number, others that they constitute but a single one,
We have believed it to be more humane that they should be designated
as several, and all be valid, and that those who have profited by
the liberality of the donors may know that the gifts of the latter
were not void. (4) If, however, anyone
should receive a donation in which it was stipulated that the payment
of a certain sum of money to him should be made every year, which
sum did not exceed that prescribed by law, in the case of donations,
there was a difference of opinion whether he who made this particular
donation did not, in fact, make several, and that they did not require
to be registered, or whether the annual donations proceeded from the
source and origin of the entire stipulation, and should be considered
as but one donation, and undoubtedly required the formality of registry.
The ancient authorities greatly differed on this
point; but We, desiring to permanently dispose of all these questions,
hereby positively order that if a donation of this kind should be
made payable annually during the life of either the donor or the donee,
it shall be held to consist of several donations, and to be exempt
from the requirement of registry. The
uncertainty of fortune has suggested this rule to Us, as it is possible
that the donor or the donee may only survive for the term of one year,
or for a longer or a shorter time than this, and thus it may be ascertained
that the entire amount of the donation did not exceed that prescribed
by law. If, however, a mention of heirs has been made by either party,
or the duration of the life of either the donor or of him who received
the donation, was added, then the donation was, as it were, perpetuated,
and rendered greater and more valuable by means of the extension of
time, and it should be understood to be a single gift, and in its
total amount to exceed that prescribed by law, and it must, by all
means, be registered, otherwise it will be void. Read for the seventh
time in the New Consistory of the Palace of Justinian, and given on
the third of the Kalends of November, during the Consulate
of Decius, 529. 35. The Same Emperor
to Julian, Praetorian Prefect. When anyone gives a
donation of money, and states a certain weight, but does not mention
anything else, either generally or specifically, We require him, by
all means, to give the stated weight of silver, whether he should
prefer to do so in the form of vases, which shall not be less in value
than the entire mass of which they are composed, or whether the estimate
is made of silver in ingots, at the valuation that metal of this kind
is worth in that part of the country. (1) If, however, anyone
has donated a certain income from his lands without specifying them,
he will be obliged to transfer real-property from his estate that
will return as much income as he mentioned in the donation, but the
said real property need not be either the best or the worst which
he has, but shall be of the average value of the
same. (2) In like manner,
if anyone should donate a certain number of slaves, without designating
them by name, he should not deliver such as will be a burden rather
than an advantage; nor, on the other hand, is he compelled to deliver
those who are of greater value than any of his other slaves, but,
under these circumstances, a proper average should be considered. (3) Where, however,
the donor, having neither money nor slaves to give, or not having
the full amount which he gave, donates something, an appraisement
should be made of the deficiency, so that an estimate may be had of
the amount of silver or slaves (as We have previously stated) and,
in appraising the slaves, not more nor less than fifteen solidi
shall be estimated as the value of each one, and in estimating
the income from land the valuation shall be based upon what it has
been worth for fifteen years. In
all these cases, however, if the donation is made within the limit
prescribed by law, no registry shall be required. But if it should
exceed that amount, then recourse must be had to registry, so that,
with reference to what exceeds the sum authorized by law, the excess
alone, and not the entire amount, shall be extinguished, in accordance
with the rule which We already have established. (4) If, however, anyone
should make a donation of his entire property, or of the sixth, the
half, the third, the fourth, or any other portion of the same, and
the law has not been invoked to declare his donation inofficious,
he will be compelled by the provisions of Our law to furnish the donee
as much as he gave him, and in this instance, as We have previously
ordered, registry of the donation shall by all means be required. (5) If, however, in
all of the above-mentioned cases, the usufruct of the property should
have been reserved by the donor, delivery shall be understood to have
been legally made. But if the donor did not expressly reserve it,
and any stipulation was inserted in the donation, delivery of the
property can be compelled to be made by virtue of the stipulation.
But when this has been omitted, and the donor did not reserve the
usufruct, still, by Our law, the necessity will be imposed upon him
to also transfer what he intended to donate, and the donation shall
not be void for the reason that the property was not turned over;
nor shall it be confirmed merely by delivery, but the necessary effect
of the latter will render the donation complete, and it shall be considered
perfected according to Our law, and the donor will certainly be required
to deliver either the property in question, or a part of the estate
which he donated, or the whole of the same. For, as it depends upon
the will of everyone to do what he intended, he must either not carry
out his intention, or, after he has agreed to do so, he must not fail
by having recourse to any carefully considered artifice, and must
show as much zeal in complying with his engagements as in the invention
of lawful excuses. These
rules will be all the more binding if the donation was made for pious
purposes, or to members of the clergy, and such donations must be
registered in accordance with the rule which has been specially laid
down by Us in cases of this kind, and where they have been made for
pious purposes, as aforesaid, and not carried into effect, the donor
may be considered as irreverent and even impious, and must remember
that he will be liable, not only to the penalties prescribed by law,
but also to those inflicted by Heaven for fraudulent acts of this
description. In all the
instances above mentioned not only the persons themselves, but also
their heirs, will be compelled not only to deliver the property donated
to those to whom the gift was made, but to their heirs as well. Given at Constantinople,
on the fifteenth of the Kalends of April, during the Consulate
of Lampadius and Orestes, 530. 36. The Same Emperor
to John, Praetorian Prefect. If anyone should contribute
money for the ransom of captives, or bind himself by giving security
to do so, for any amount whatsoever, he is advised that he cannot
claim what he has given, or dispute the enforcement of his bond, on
the ground (as in the case of donations) that the sum is not payable
for the reason that the donation was not registered. On the other
hand, he who received the money, whether immediately or after security
had been furnished, will be obliged to discharge his pious duty, and
he shall not be molested or annoyed either by him who gave him the
money, or by others who were authorized by the law to require this
to be done; but he shall only make oath that he actually paid the
entire amount for the redemption of captives, without the commission
of fraud or any diminution of the sum which was given him. (1) In like manner,
We release from the necessity of registry all donations of movable
property, or of such as is capable of moving itself, which Our distinguished
generals may bestow upon Our brave soldiers, whether derived from
their own estates, or from the spoils of the enemy, at a time when
they were either engaged in actual military service, or were residing
in any place whatsoever. (2) We also grant the
same liberality of Our law to those whose houses have been destroyed
by fire or other casualty, and such persons, who have received any
sums of money, or in whose favor bonds have been executed, need not
apprehend any demand for the same, and they can only claim the amount
which is admitted to be due, even though no record has been made of
the transaction; and permission shall not be granted them to spend
it for any other purpose than the reconstruction of their houses.
If any doubt should arise as to whether the entire sum, or only a
portion of it has been expended upon the building, this shall be settled
by the oath of the owner of the same. (3) With reference
to other donations We decree by the present law that they, without
distinction, shall not be required to be registered up to the amount
of five hundred solidi, for We think that donations above that
amount should be registered; and hence We amend Our law, previously
enacted, by which donations up to the sum of three hundred solidi
were held to be valid without registry. Given at Constantinople,
on the fifteenth of the Kalends of November, after the Consulate
of Lampadius and Orestes, 531. 37. The Same Emperors
to John, Praetorian Prefect. We decree that superfluous words which are ordinarily inserted in donations, as, for instance, one sestertius, one drachma, four asses, should absolutely be abolished. For what need is there to employ words which have no effect? Therefore, We order that, under no circumstances, shall terms of this kind be mentioned, either in Imperial donations or in any others; but if anyone should make such insertions through mere verbosity, or omit to do so, it will make no difference. Title
55. Concerning donations which ake made provisionally or under a condition,
or to take place at a certain time. If you can prove, as
you allege, that a donation was made by you to your granddaughter,
under the condition that she should furnish you with a certain sum
for your support, you are, in this instance, entitled to relief on
the ground that she refused to comply with the condition, that is
to say, the right of action by which the former ownership may be recovered
will be restored to you. For not only will you be legally entitled
to a personal action, but the Divine Emperors have decreed that, in
a case of this kind, an action for the recovery of the property should
also be granted. Published on the sixth
of the Kalends of December, during the Consulate of Tuscus
and Bassus, 259. 2. The Emperors
Diocletian and Maximian to Zeno. If you donated the
ownership of your property, under the condition that after the death
of the person who received it, it shall revert to you, the donation
will be valid, as it can be made either to take place at a certain
or an uncertain date, and the donee is required to comply with the
condition imposed upon him. Published on the fifth
of the Ides of March, during the Consulate of Maximus, Consul
for the second time, and Aquilinus, 286. 3. The Same Emperors
and Caesars to Marcella. Whenever a donation
is made under the condition that what is given shall, after a certain
time, be transferred to another, it is stated on the authority of
ancient rescripts that if he who is the beneficiary of a donation
did not enter into a stipulation, and did not comply with the condition
of the agreement, a personal action for recovery would lie in favor
of the party who made the donation, or his heirs. But as the Divine
Emperors afterwards, through a more indulgent interpretation of the
law and in accordance with the wishes of the donor, permitted a praetorian
action to be brought by him who did not enter into the stipulation,
the action which your sister, if she had been living, could have instituted,
will be granted to you yourself as her successor. Published on the eleventh
of the Kalends of October, during the Consulate of Diocletian,
Consul for the fourth time, and Maximian, Consul for the third time,
290. 4. The Same Emperors
and Caesars. A donation which
has been perfected does not admit of subsequent conditions; and therefore,
if your father, after having made a donation, added certain conditions
a short time afterwards, there is no doubt
whatever that this fact cannot to any extent prejudice the rights
of his grandchildren, the issue of your brother. Given on the Kalends
of October, during the Consulate of Tiberianus and Dio, 291. 5. The Same Emperors
and Caesars to Dexippus. If a mother should
give something to her daughter, who is under the control of her father,
subject to the condition that she will be emancipated within two years,
although she did not become her own mistress in accordance with the
condition imposed by her mother, still, if the husband should die
first, and she should become independent in any way whatsoever, this
case resembles the bequest of a legacy, and she will be either entitled
to the property donated, or to an action to recover the same. Ordered at Nicomedia, on the Ides of December, during the Consulate of the Caesars. Title
56. Concerning the revocation of donations. Even if, by means of
perfect donations, a freedman at any time whatsoever should obtain
possession of property given to him, so as to have the full right
of possession as owner, still, if he should be ungrateful, the entire
donation can be revoked, if his patron should change his mind. This rule
shall also be observed with reference to property purchased in the
names of freedmen with the money of their patrons, and for their benefit,
as those who, through their faithful service, have enjoyed the generosity
of their patrons, are not worthy to retain what has been given them
when they begin to neglect their duties; since liberality should rather
induce them to discharge their obligations than to be guilty of insolence.
This law, however, shall only apply to him who
made the donation, but neither his children nor heirs will be entitled
to its benefit, for it is not just that donations should in any way
be interfered with which he who made them did not revoke in this lifetime. Given on the fifteenth
of the Kalends of July, during the Consulate of Aemilianus
and Aquilinus, 250. 2. The Emperor Probus
to Felix. If it should be proved
before the Governor of the province that your daughter's grandmother,
impelled by regret for what she had done, destroyed by fire the documents
evidencing her donation, you need not fear that what has once been
lawfully valid can, by any subsequent act, be rendered doubtful. Published on the Nones
of May, during the Consulate of Probus and Paulinus, 279. 3. The Emperors
Carinus and Numerianus to Januarius and Felix. Your mother cannot,
by having merely changed her mind, alienate the land which she donated
to you after you had been emancipated. Published on the second
of the Ides of January, during the Consulate of Carinus, Consul
for the second time, and Numerianus, 284. 4. The Emperors
Diocletian and Maximian, and the Caesars, to Procula. As you allege that
you have donated property for the purpose of defrauding another person,
you understand that your confession is dishonorable; and therefore,
if you have perfected the donation, you cannot revoke it merely by
making the above allegation under the pretext of having changed your
mind. Published at Heraclia,
on the Kalends of April, during the Consulate of the above-mentioned
Emperors. 5. The Same Emperors
and Caesars to Epagathus. If you made the donation
in conformity with law, it cannot be rescinded by the authority of
Our Rescript. Ordered at Heraclia,
on the fifth of the Kalends of May, during the Consulate of
the above-mentioned Emperors. 6. The Same Emperors
and Caesars to Herennia. In the beginning you
were perfectly free to give, or not to give, to your son the lands
and slaves referred to; therefore, cease to ask that the donation
which you perfected be revoked on the ground of the absence of your
husband, and your other children, as the validity of the donation
is not dependent upon their presence. Ordered on the fifth
of the Kalends of October, during the Consulate of the Caesars. 7. The Emperors
Constantine and Constantius to Philip. To those mothers alone
who have not contracted a second marriage, but have only been married
once, We grant the power to revoke any donations which they have made
to their children, when they are guilty of ingratitude towards them.
Therefore, he who is accused of ingratitude by his mother will, by
order of the presiding judge, be compelled to restore to her whatever
he holds under the title of donation, from the very day on which issue
was joined in the case. We, however, by no means permit to be revoked
any gift of property acquired by the son while on good terms with
the mother, and which has been sold, donated, exchanged, bestowed
by way of dowry, or alienated for any other lawful reason, before
judicial proceedings were instituted. Moreover,
We desire that the action granted to the mother shall be a personal
one, and shall only have the effect of recovering the property, and
that it shall not be granted against, or in favor of an heir. We think
that enough has already tacitly been provided with reference to other
mothers, who lead disreputable and dissolute lives; for who can imagine
that any favor should be granted them, as We are willing to accord
none of these privileges to women who have merely contracted a second
marriage? Given on the twelfth
of the Kalends of October, during the Consulate of Liminius
and Catulinus, 349. 8. The Same Emperor
to Orphitus, Praetorian Prefect. If a patron who has
no children should, by way of donation, ever bestow all his property,
or a portion of the same, upon his freedmen, and afterwards should
have issue, everything which was donated shall revert to him who gave
it, and remain subject to his will and at his disposal. Given on the fifth
of the Kalends of April, during the Consulate of
Arbitio and Lollianus, 355. 9. The Emperors
Theodosius and Valentinian to the Senate. Neither a father, a
grandfather, nor a great-grandfather can revoke donations made to
a son or a daughter, a grandson or a granddaughter, or a great-grandson
or a great-granddaughter, who has been emancipated, unless it is proved
by perfectly clear evidence that the person to whom the donation was
made has been guilty of ingratitude and want of filial affection,
in one of the cases enumerated by
the laws. Given at Ravenna, on
the fifth of the Ides of November, during the
Consulate of Theodosius, Consul for the thirteenth time, and
Valentinian, Consul for the third time, 430. 10. The Emperor
Justinian to Julian, Praetorian Prefect. We decree, in general,
that all donations made in conformity with law
shall be valid and irrevocable, and if he who receives the donation
is not found to be guilty of ingratitude towards the donor, as, for
instance, where he has inflicted atrocious injury upon him, or has
been guilty of personal violence towards him, or of having, by treachery,
caused him to suffer great pecuniary losses which sensibly diminished
his estate, or has exposed him to the danger of losing his life, or
is unwilling to comply with any agreements inserted in the document
evidencing the donation, or even if these were not committed to writing,
and he, as the recipient of the donation, promised to observe
them, but failed to do so.
But only for causes of this kind, where they have
been regularly proved in court by indisputable evidence, do We permit
donations made to such persons to be revoked, in order that no one
may have permission to accept the property of another, and then ridicule
his liberality, subject
him to loss, and cause him to suffer the injuries above mentioned
from the ungrateful beneficiary of his bounty. We,
however, decree that this provision shall only apply to the persons
originally interested, as permission is not granted to the heirs of
the donor to file complaints upon such grounds; for if he who suffered
these indignities remains silent, his silence should always continue;
and his posterity ought not to be allowed to institute legal proceedings
either against the individual alleged to be ungrateful, or his heirs. Given on the fifteenth of the Kalends of April, during the Consulate of Lampadius and Orestes, 530. Title
57. Concerning donations causa mortis. Where it is stated
in the donation that if one of the donees should die, and his share
accrue to the others, an action based on a trust will lie if the condition
should be fulfilled, and the donation be perfected by the death of
the donee. Published on the fourth
of the Kalends of October, during the Consulate of Maximus,
Consul for the second time, and Aelianus, 224. 2. The Emperor Gordian
to Zoilus. Your granddaughter,
born of your son and daughter-in-law, will succeed to her mother who
died intestate; but still, the former, after the death of your son
by whom she had the daughter, was not, when she married a second time,
prevented from imposing any condition which she may have wished upon
her dowry when she gave it. If
she stipulated that her dowry was to go to her brother as a donation
mortis causa, in case of her own death, as it was provided
by a Constitution of the Divine Severus, that where donations mortis
causa were involved and the deceased did not leave other property,
the heir would not be entitled to the amount prescribed by the Falcidian
Law, he who is the heir of your daughter-in-law will not be prevented
from claiming the benefit of this constitution. Published on the tenth
of the Kalends of February, during the Consulate of Gordian
and Aviola, 240. 3. The Emperors
Diocletian and Maximian, and the Caesars, to Haeres. A sister is not permitted
to rescind a donation mortis causa which has been legally made
by her brother. Ordered at Sirmium,
on the third of the Kalends of January, during the Consulate
of the above-mentioned Emperors. 4. The Emperor Justinian to Julian, Praetorian Prefect. A doubt arose with
reference to the effect of a donation mortis causa, and certain
authorities placed it among last wills, and were of the
opinion that it should be compared to a legacy; others held that it
should be classed among donations inter vivos are living.
For the purpose of resolving
this doubt, We order that all donations mortis causa, whether
they were made at the time of death, or previous to it after long
consideration, shall, by no means, require to be registered; nor shall
the presence of public officials be exacted, or compliance with the
legal formalities which are customary in the execution of instruments
of this kind be necessary; but their validity shall be the same as
if anyone desired to make a donation mortis causa in the presence
of five witnesses, or by an instrument in writing; or, even if nothing
was written, the transaction shall remain perfectly valid without
having been registered, and no attack can be made upon it on this
ground; nor shall it be considered without force and void for this
reason, but it shall have the same effect that last wills possess,
and shall not be understood to differ from them in any respect. Given at Constantinople, on the Kalends of September, during the fifth Consulate of Lampadius and Orestes, 532. Title
58. Concerning the abolition of the penalties of celibacy and widowerhood
and the abrogation of tithes. Those who were considered
celibates by the ancient law are hereby released from any apprehension
of legal penalties, but can live just as if they were performing the
duties of matrimony, and were included among husbands; and all of
them shall have the same right to take under a will which others enjoy.
Nor shall anyone be considered to bear the stigma
of a widower, and such penalties as have previously been prescribed
on this account shall no longer have any force. We decree that this
same rule shall also apply to women, and We release all persons, without
distinction, from this yoke which has been imposed upon their necks
by the authority of the law. Given at Rome, on the
Kalends of April, during the Consulate of Constantius, Consul
for the second time, and Constans, 239. 2. The Emperors
Honorius and Theodosius to Isidore, Prefect of the City. We decree that the
provision of the Lex Papia with reference to tenths, affecting
man and wife, shall be abolished, and even though there may be no
children, each of them shall be allowed to receive the entire amount
of the estate of his or her consort when left by will (unless some
other law should prevent this from being done). Hence, hereafter,
a husband or a wife can leave to one another as much of their respective
estates as affection for the survivor may dictate. Given on the Nones of September, during the Consulate of Varana. Title
59. Concerning the right of children. Let no one hereafter
apply to Us for the right of children, for by this law We grant it
to all without distinction. Given on the Nones
of September, during the Consulate of Varana, 410. 2. The Emperor Justinian
to Menna, Praetorian Prefect. In accordance with
the principles of equity, We abolish the injustice which was, in former
times, committed against the mother of a deceased person of either
sex, and We order that she shall be fully entitled to the legal rights
granted by the Tertullian Decree of the Senate, even though, being
a freeborn woman, she may not have had three children, or if being
a freedwoman, she may not have had four. Given at Constantinople,
on the Kalends of June, during the second Consulate of Justinian,
528. |