Translation and Interpretation

WILLIAM M GORDON (GLASGOW)

One achievement of which Alan Watson can be justly proud is the mastermind­ing of a new translation of the Digest into English. It can be said with some sat­isfaction on his part that those who lack Latin now have access to a reliable version in English of the whole of the Mommsen-Krueger edition of the Digest.

The two texts in question may be taken individually. The first, with transla­tion as given in the Watson Digest, is:

“Apud Iulianum libro tertio decimo digestorum quaeritur: si dominus iusserit procu­ratorem suum certam pecuniam sumere et faenerare periculo suo ita, ut certas usuras domino penderet dumtaxat, si pluris faenerare potuisset, ipse lucraretur, in creditam pecuniam videtur, inquit, accepisse. Plane si omnium negotiorum erat ei administra­tio mandata, mandati quoque eum teneri, quemadmodum solet mandati teneri deb­itor, qui creditoris sui negotia gessit.” (D.17.1.6.6, Ulpian, 31 ad ed.)

[“Julian, in the thirteenth book of his Digest, discusses the following question.

As the insertion of square brackets in the translation indicates, the meaning of the passage was thought not to be entirely clear and some interpretation by way of expansion of the Latin was felt to be necessary. The most significant additions are those which indicate that the translation assumes that the risk of loss of the money which was to be lent out lay with the principal who had given the instruc­tions and that the money which was to be treated as lent was the excess received by the procurator. The assumption that the risk lay with the principal is based on the assumption that the suum and suo used respectively in relation to the procurator and to risk must both refer to the same person and that that person would be the subject of the clause in question. Alan expresses the view, which on further consideration may seem a generous one, that “Not unreasonably the translators think of the risk being that of the principal...”.^[136] He prefers, how­ever, to interpret the suo as referring to the procurator so that the loan is to be at the procurator’s risk.^[137] He therefore translates as follows:

“The question is put in the thirteenth book of Julian’s Digest: If a principal instructed his procurator to take a certain sum of his money and lend it at his [the procurator’s] risk on the terms that he would pay only a certain rate of interest to the principal; if he was able to lend at higher, he himself would take the profit; he seems to have taken the money as a loan.

As he points out, on this interpretation the question becomes one of how to con­strue the taking of the money by the procurator and not of how to deal with the excess. He confesses his puzzlement at how the excess could be regarded as a loan because he assumes that the procurator was to be allowed to retain it. The original translation, however, assumes that as the excess is to be regarded as a loan it will be recoverable by the principal and the justification for this assump­tion has to be that, as the principal takes the risk of loss, he should get any addi­tional gain which the procurator is able to make.

How, then, is the transaction between principal and procurator to be con­strued? The original translation assumes that the procurator was to be allowed to take some of the principal’s money and lend it out at a fixed rate of interest, taking no responsibility for loss of the sum lent. He was in fact able to obtain a higher rate than was envisaged and the question for Julian was what was to hap­pen to the excess. Could the procurator keep it, presumably as a reward for his initiative or good fortune, or must he account for it, and on what basis? The alternative assumption is that it was part of the arrangement between procura­tor and principal that the procurator would lend out the sum at his own risk and would get any additional interest which he was able to obtain as a counterpart of his obligation to make good any loss, arising by default of the debtor or other­wise. The question for Julian would then be, on what basis the principal could recover the money that he had authorised the procurator to take and lend. The answer of Julian was that whatever money was in question was to be regarded as lent and it would follow that Julian would have granted a condictio for its recovery.

Further reflection on the Latin and on the commercial sense of the transaction suggests that the facts of the situation considered by Julian were that there was a specific arrangement that the procurator would pay a fixed rate of interest on the money which he was instructed to take and lend out at interest but that he was allowed to lend out the money at the highest rate which he could obtain and could retain the excess as the counterpart of his taking the risk of loss. This read­ing means that the pecunia referred to by Julian is the same pecunia as was taken by the procurator. It is also the case that grammatically the suo can relate to the procurator although it might seem more naturally to relate it to the same person as the suum. The “not less than” gratuitously inserted before “a fixed rate of interest” in the original translation can also be eliminated. On this reading the transaction would, in commercial terms, be like a deposit in a bank at a fixed rate of interest, which was an everyday transaction in Rome as in modern times. It is not, of course, suggested that this was a deposit in a bank with the procu­rator acting as banker; it is merely suggested that the transaction would make the same commercial sense. It follows that the original translation does need to be or, at least, very probably should be, amended in the sense suggested by Alan.

This is not the end of the story, however. The question remains what Julian thought should happen to the interest that the procurator agreed to pay and why the question of mandate is raised only for the procurator omnium bonorum. The latter question raises a further one, namely, whether the availability of mandate in this case was already proposed by Julian or whether it was put for­ward only by Ulpian who may be the author of the last sentence.⁴ As Alan rightly points out in his article,⁵ the difficulty arises because of the nature of the formulary procedure. As with the English writ system, the formulary system attempted to achieve precision in the application of remedies by confining the remedy sought within defined parameters.

⁴ A Watson, Contract of Mandate in Roman Law (Oxford, 1961) (hereafter Mandate), at 47-8, suggesting that “plane si” is an addition by Ulpian and not an interpolation by the compilers.

⁵ “Boundaries of Contract”, supra n.1, 42. fit situations for which they were not designed. That was the problem facing Julian. There is, however, a preliminary issue, namely, where in his digesta he dealt with it.

Lenel is quite confident that the reference in the text of Ulpian to book 13 of Julian’s digesta, in which Julian dealt with deposit and fiducia, is an error and that the text originally referred to book 14 in which Julian dealt with mandate.^[138] This would seem to be supported by the fact that the quotation of Julian occurs in Ulpian’s book 31 where he in turn deals with mandate. This may, however, be too simple and obvious a suggestion of change particularly if the final sen­tence “plane si...” is from the pen of Ulpian and not a continuation of the quo­tation from Julian. At first sight it may not seem likely that the problem would be discussed in the context of deposit as the situation is one in which instruc­tions have been given to take money and the recipient of the instructions is to use the money from the start. This, a depositary would not normally be permit­ted to do. A mandate seems both a reasonable possibility and a more likely con­text. On the other hand, it is not clear that Julian would have regarded the relationship between principal and procurator as governed by the contract of mandate.^[139] Should this be so then it is at least possible that another context is rel­evant.

The answer of Julian to what relationship was created was that the money was now to be regarded as lent. No reasons are given and the decision that in effect the transaction is to be treated as a mutuum is not without its difficulties, which may or may not include the difficulty that it is not expressly indicated that the procurator is to become the owner of the money.^[141] What is not discussed is what is to become of the arrangement that the procurator is to pay interest at a fixed rate to the principal. By holding that the transaction is to be regarded as mutuum Julian seems to deny a claim to the interest. This is particularly so if, by the pecunia that is to be treated as lent, he means the same pecunia as the pecunia that the procurator was instructed to take and lend out. It would seem to follow that it is only this pecunia that is to be recoverable by the principal as lent. The purpose of so holding would be to allow the principal to recover even if the money were lost by the procurator, possibly before he had had the chance to lend it out. Logically, of course, it should also mean that the procurator would keep all the interest if he did lend out the money, in that the agreement to pay interest would be an unenforceable pact, but that logic might not hold where the party concerned was a procurator.

What, of course, is not specified is at what stage in the proceedings the prob­lem of the legal relationship between the parties became an issue and what the principal was trying to recover from the procurator. All that appears to be cer­tain is that the procurator had taken the money so that there was a question of recovery. It does not appear that the procurator had simply done nothing, which would have raised more sharply the question whether there was a possibility of suing on mandate, and that in turn may suggest or reinforce the suggestion that the context of the discussion was not necessarily mandate. It may then be that the primary question was whether the principal could recover money taken by the procurator in accordance with his instructions but then lost in some way not imputable to the procurator. The procurator might in those circumstances have argued that the transaction did not conform to any known contract and so he was not obliged to restore the money which was lost without any fault on his part. As he had agreed that the money should be lent out at his risk, however, it would not be unfair to hold, as Julian does, that the situation was close enough to mutuum to allow recovery by a condictio without considering the further possible consequences of so holding. What the text does seem to indicate, how­ever, is that it can be used as further evidence that Julian indeed was not in favour of allowing the action on mandate in the case of a procurator. Otherwise it is hard to see why he did not at least discuss the possibility of an action on mandate as the appropriate means of giving effect to the arrangement between the parties. It also suggests that Julian would not have favoured the recognition of depositum irregulare if that can be described as a distinct legal institution.¹⁰ Had he done so and been inclined to uphold the transaction as an offshoot of deposit, depositum irregulare would also seem an obvious possibility for dis­cussion. This in turn assumes that in the text we have the whole of Julian’s dis­cussion. There is perhaps here in the absence of such discussion some further ground for the suggestion that the text of Ulpian has been abbreviated.¹¹

There remains the question why the possibility of mandate was not discussed by Ulpian, who, if he was the author of the last sentence, clearly saw no difficulty in allowing an action on mandate in the case of someone who was administering the whole affairs of the principal. Ulpian’s concern appears to be whether both actions could lie if the taking of the money is construed as a loan as it was by Julian. He justifies the decision that the action on mandate will lie by comparing the situation to one in which a debtor of the principal is

¹⁰ See W M Gordon, “Observations on Depositum Irregulare”, Studi in onore di A. Biscardi III (Milan, 1982) 363.

¹¹ Mandate, supra n.4, 48.

administering the principal’s affairs. By implication he accepts the decision of Julian. By distinguishing between the case put of an individual arrangement between the principal and his procurator and an arrangement within the con­text of administration of the principal’s whole affairs he appears to exclude the possibility of a mandate in the former case. It is not clear why this should be so, particularly when in D. 17.1.10.8 he accepts, with reference to Labeo, the possi­bility of a mandate to a procurator to lend to a third party.

Alan suggests that, in the context of the passage, at least one point at issue may have been remuneration of the mandatary.^[142] While Ulpian does begin the fragment with mention of this, he none the less appears to have departed from it as the main subject for discussion by the time para. 6 is reached. Again, D. 17.1.10.8 suggests that where a mandatary lent out money at his own risk any interest received was not conceived as a reward for performing the mandate but as compensation for the risk undertaken. Ulpian seems to have had no difficulty in allowing the action on mandate in case of procuratio.^[143] The explanation therefore may be found in a distinction between a iussum directed to a procura­tor in an individual case and a iussum directed to a procurator who was admin­istering the principal’s whole affairs under a mandate. In the former case the iussum could be regarded as simply an order to be carried out and not as a con­tract of mandate; in the latter case the mandate would already be in existence and the iussum would be a specification and modification of the general instruc­tion to administer the principal’s affairs in the interest of the principal. The issue remains one of the boundaries of a particular contract but possibly a somewhat different issue than the one identified by Alan.

The second text follows on from the first. It reads, with translation, as fol­lows:

“Marius Paulus quidam fideiusserat pro Daphnide mercedem pactus ob suam fideius- sionem et sub nomine alterius ex eventu litis caverat sibi certam quantitatem dare: hic a Claudio Saturnino praetore maiores fructus inferre iussus erat et advocationibus ei idem Saturninus interdixerat. videbatur autem mihi iudicatum solvi fideiussisse et quasi redemptor litis extitisse et velle a Daphnide mandati iudicio consequi, quod erat condemnatus. sed rectissime divi fratres rescripserunt nullam actionem eum propter suam calliditatem habere, quia mercede pacta accesserat ad talem redemptionem. Marcellus autem sic loquitur de eo qui pecunia accepta spopondit, ut, si quidem hoc actum est, ut suo periculo sponderet, nulla actione agat, sin vero non hoc actum est, utilis ei potius actio competat: quae sententia utilitati rerum consentanea est.” (D.17.1.6.7, Ulpian, 31 ad ed.)

[“A certain Marius Paulus gave a verbal guarantee on behalf of Daphnis; he agreed on a payment in respect of his guarantee and took an undertaking that in the event of a successful lawsuit in the name of the other, a certain sum of money would be paid to him. He was ordered by the praetor, Claudius Saturninus, to pay [into court] a larger amount, and the same Saturninus prohibited him from pleading in the courts. Now it seemed to me that he had given a verbal guarantee for the payment of the judgment debt and that he both stood in the position of one who had undertaken the risk of the suit for a consideration and wished to obtain from Daphnis by an action on mandate the amount for which judgment had been given against him. However, the Deified Brothers most properly declared in a rescript that in view of his sharp practice, he had no right of action because he had in effect released [Daphnis] from liability by the agreement for payment. Marcellus, however, says, with reference [to the case of] a man who has made a sponsio in return for a financial consideration, that if indeed it was agreed that he should make the sponsio at his own risk, no action is available to him; but if this was not the agreement, he does have an actio utilis. This view is con­sistent with expediency.”]

To this translation Alan prefers:

“A certain Marius Paulus had given a verbal guarantee for Daphnis, having agreed upon a reward on account of his guarantee, and under the name of another he took an undertaking that he would be paid a certain amount from the outcome of the lawsuit. He was ordered by the praetor, Claudius Saturninus to pay a larger sum into court, and the same Saturninus forbade him from court pleading. It seemed to me that he had guaranteed he would pay a judgment debt and was in the position of one who had bought up the lawsuit, and wanted to recover from Daphnis by the action on mandate because he had suffered condemnation. But the Deified Brothers very properly declared in a rescript that he had no action because of his sharp practices because, hav­ing made an agreement for payment, he proceeded to this kind of a buying up of the right of action. Marcellus, however, says about a person who gave a verbal guarantee when he had accepted payment that if the agreement indeed was that he should guar­antee at his own risk, he had no action: but if it was not so agreed he does have an actio utilis. This view is consistent with utility.”

The facts of the case are complicated and by no means clearly set out but it is evident that the main purpose of Marius Paulus’s manoeuvres was to obtain payment from both sides in any action between Daphnis and his (Alan prefers her) creditor. With his usual acuity Alan has worked out the main elements in the scheme.¹⁴ In outline, what happened was that Marius Paulus was to receive payment from Daphnis for acting as his guarantor. At the same time he arranged with his creditor, in someone else’s name, that he would receive a fixed sum or a definite share of the proceeds of any action brought against Daphnis. His trick­ery was discovered and the praetor Claudius Saturninus punished him. It seems that Marius Paulus was himself sued for the principal debt and condemned to pay. He then sought to recover what he had to pay from Daphnis in an action on mandate. His action was denied, because of his sharp practice, in an imper­ial rescript sought by Daphnis. At the end of the text Ulpian goes on to state the views of Marcellus on what should happen when payment is made for acting as a guarantor. Marcellus denies the paid guarantor an action for recovery against the principal debtor if the paid guarantor agreed to take the risk that he would have to pay the principal debt but otherwise allows him what he calls an utilis actio. Ulpian agrees that this result is expedient or appropriate. Even if Marius Paulus had not used sharp practice, therefore, on this view he might not have been given an action against Daphnis, depending on the exact terms of the agreement between them.

Alan’s reconstruction of the sequence of events in the case of Marius Paulus seems broadly correct. It is not clear, however, that he is right in thinking that Marius Paulus bought Daphnis’s debt from his creditor under an arrangement whereby he himself, acting under a false name, brought the action as procura­tor with a view to keeping part of the proceeds of the action. This situation, in which the redemptor litis pays off the creditor and then sues in the creditor’s name as procurator in rem suam, was no doubt usual in the case of a redemptor litis who bought up the right of action at a discount in the hope of recovering from the debtor either the full amount or at least considerably more than he had paid to the creditor. This he could profitably do until the lex Anastasia (CJ 4.35.22, AD 506) which, in general, forbade the recovery of more than the redemptor had paid to the creditor. In this case, however, it appears that Marius Paulus had stipulated for payment of a fixed sum or proportion of what was recovered. It is not stated that he obtained a procuratio in rem suam, which would be the normal mechanism for recovery. That he is described as quasi redemptor may also be significant. If he had obtained a procuratio in rem suam it is also difficult to see how he came to be sued because he himself would have had to bring the action. It is more credible that the action should have been brought by the creditor who presumably did not know, any more than did Daphnis, what Marius Paulus was up to. An accomplice might have brought the action to conceal the plot but as it appears that it was because action was raised against him that Marius Paulus’s plot came unstuck, again action by the credi­tor seems more likely. The prohibition on Marius Paulus acting as an advocate, imposed by the praetor, Saturninus, is seen by Alan as an indication that he was acting as a procurator but this does not indicate conclusively that he was acting as a procurator in rem suam. He might still have been a procurator by profes­sion, or have included acting as procurator among his dealings, which would explain the sanction imposed on him by Saturninus. Indeed, it is not impossible that on the face of it he was simply acting as procurator for the creditor and apparently acting merely as his advocate.

Ulpian’s clarification of the situation as he sees it is that Marius Paulus is in the position of someone who has guaranteed that a judgment debt will be paid. This clarification suggests that Marius Paulus’s guarantee had been, not a guar­antee of Daphnis’s debt, but a guarantee that any judgment against him would be met, a cautio iudicatum solvi. It is not made clear why such a guarantee should have been required and initially it is left unclear what the normal conse­quences of the situation envisaged by Ulpian would have been. Ulpian’s clarifi­cation seems to lead him in the direction of refusing an action on mandate to Marius Paulus. He then fully approves of the rescript by the Deified Brothers. This denies the action in the circumstances of this case on the ground that

Marius Paulus was guilty of sharp practice in entering on such a purchase of the creditor’s right of action as had occurred when Daphnis had paid him. The text does not spell out exactly in what this sharp practice consisted, other than by reference to the use of another party’s name in stipulating for a share of the pro­ceeds of the action (which is presumably what is meant by talem redemp­tionem). The inference seems to be that the sharp practice consisted neither in taking money for giving the guarantee nor in buying the creditor’s right of action as such, but in a combination of these procedures. D. 17.1.7 (Papinian, 3 resp.) shows that a procurator buying a plea might be, but was not necessarily, acting contra bonos mores in doing so; he might be arranging for a suitable remuneration for his services. It seems likely that the sharp practice that was condemned consisted in concealing what Marius Paulus was up to. If, as has been suggested above, Marius Paulus was indeed acting as procurator for the creditor, but not as a procurator in rem suam who had openly bought up the plea, he might already have been receiving remuneration for his services as advocate. He would therefore have been paid by Daphnis for undertaking his guarantee, he would have been paid by the creditor for acting as his procurator and, through the third party, he would have arranged to receive a share of what was recovered from the debtor. But his profit would depend in part on his recov­ering from Daphnis the full amount of the debt for which he had given the guar­antee, on the basis that in giving the guarantee he had been acting on a mandate from Daphnis, as a guarantor normally would do. His claim would be that Daphnis was indemnifying him for the loss he had incurred in paying the debt on Daphnis’s behalf. In fact he would not have paid the full amount of the debt, because of his disguised arrangement to receive a share of the proceeds of the litigation and so he would be recovering more than an indemnity. That he should not be allowed to do so in the circumstances might seem obvious and hence Ulpian’s wholehearted approval of the decision of the Deified Brothers. Ulpian, however, does seem to indicate some reservation over the reasoning of the rescript if it was meant to indicate that in every instance where a guarantor had been paid he could not buy up the creditor’s right of action and still expect to recover the amount of the debt from the debtor for whom he had given the guarantee. He also would seem to be inclined to modify the conclusion to which his clarification of the facts appeared to be leading.

That there is a further problem is indicated if one looks again at Ulpian’s statement of how he sees the issue. This raises the question, what is the position if someone who has given a guarantee has openly bought up a plea and so emerges as the creditor in the debt for which he has given a guarantee? After his approval of the decision in the rescript Ulpian goes on to consider the views of Marcellus on the case of someone who has received payment for giving a guar­antee and the distinction which Marcellus draws between (a) a guarantor who has thereby taken the risk that he will have to pay from his own pocket if the principal debtor does not pay and (b) a guarantor who has simply provided a service for the debtor and therefore expects, or at least hopes, nevertheless to be able to recover from the debtor if he, the guarantor, has to pay up in the first instance. The position of the former would be akin to that of an insurance com­pany in modern times when, against payment of an appropriate premium, it gives a guarantee that an executor or trustee will deal honestly with the money with which the executor or trustee intromits. In most cases the company will not be called upon to pay but if there is dishonesty it will pay up and, as it has been paid for undertaking that risk, it will, or may, have no recourse, depending on the terms of the contract. In the latter case the position of the guarantor would be akin to that of a friend who is prepared to sign a guarantee to enable some­one to obtain hire-purchase or other credit facilities from a creditor who is not prepared to rely on the credit of the principal debtor. The guarantor does not usually expect to be called upon to honour his guarantee to pay the principal debt outstanding but he may, of course, be called upon to do so and then, in theory at least, he has recourse against the principal debtor. The difference where payment is made is that the facility is offered for payment and not as a friendly gesture. The amount of the payment agreed for providing the guaran­tee in the two kinds of case envisaged would no doubt be an indication of what was intended but if nothing were said about recourse there would be a question whether any should or could be given and, if so, whether on the basis of mandate or not, given that payment was involved and mandate was in principle gratuitous.

The reference by Ulpian to the views of Marcellus, of which he approves, sug­gests that he would not necessarily have denied Marius Paulus an action if he did not conceal his interest in the outcome of the litigation. The issue would have been whether he could expect to have recourse against the principal debtor not only in the simple case where he had been paid for giving a guarantee and had had to pay the debt but in the more complex and unusual case in which he turned out to be, in effect, the creditor to whom payment was due because he had bought up the creditor’s right of action. Even in the simpler case there would be a question whether recourse could be given on the basis of mandate, but in the more complex case the argument for allowing recourse would seem less compelling. In relation to the simpler case Marcellus holds that the outcome depends on what was intended when payment was made. If the guarantor was taking on the risk of non-payment of the principal debt he has no recourse. If he was not taking on the risk he has what Marcellus describes as an utilis actio. It is not entirely clear whether Marcellus means that the guarantor has an extended action, presumably on mandate, or whether he means that his action will be utilis in the sense of effective—the action is said to be competent, not to be given—or whether, perhaps, the utilis is a gloss which has slipped in because of Ulpian’s subsequent reference to the utilitas rerum. On the other hand, it is certainly clear that there would be room for discussion whether an action on mandate could be allowed in view of the payment made.

If the payment were made for undertaking the risk of having to pay the prin­cipal debt without recourse there would be no mandate, not only because of the payment made but because the arrangement was made essentially as part of an arrangement of the affairs of the potential mandatary and so in his interest. It would be quite unlike the normal situation where someone acted as guarantor for another as a friendly service, albeit one which he might expect to be recip­rocated, and was entitled to have recourse against the principal debtor if called upon to pay. There the mandate is given in the interest of the mandator. If, how­ever, the potential mandatary was not taking the risk of having to pay the prin­cipal debt without recourse but simply taking the risk that he might be called upon to pay in the first instance, the arrangement would be essentially the same as in a mandate to provide security. The difference would be that a payment was made, so that providing the guarantee was not purely a friendly service. Logically it might seem to follow that the action on mandate could not lie because the service was not performed gratuitously, and this might explain why Marcellus was prepared to allow only an utilis actio, as Alan holds.¹⁵ Another possibility is to hold that payment to or compensation of a mandatary for tak­ing a risk is not regarded as remuneration of the mandatary so that an action on mandate does lie. This would be comparable to the case in which the mandatary is allowed to obtain interest for himself if he loans at his own risk. The issue is still one of the boundaries of contract, but the boundaries may have been extended without the necessity of creating a new remedy.

Reverting to the case of Marius Paulus, what Ulpian appears to be suggesting is that if he had acted openly Marius Paulus might have been able to recover from Daphnis the amount for which he had been condemned. Following the views of Marcellus, as Ulpian does, it would seem that he would have held that Marius Paulus would have been able to recover if he had merely provided a facil­ity in order to allow Daphnis to obtain a loan. Daphnis had obtained the loan and now has to repay it. On the other hand, if in return for the payment received he had assumed responsibility for payment of the principal debt he could not sue. But then there would be no point in buying up the creditor’s right of action and so the more complex problem of subsequent purchase of the creditor’s right of action would not in practice arise as open action implies at least a degree of honesty. Open purchase by a guarantor who had merely provided a facility, however, would not seem necessarily to lead to denial of an action. A purchaser of a right of action did take a risk, and Ulpian may have been prepared to allow recovery, at least in some circumstances. Something depends on what is meant by talis redemptio. It could be taken to mean any purchase of a creditor’s right of action, on the assumption that such purchase was open to abuse and involved a potential conflict of interest, or it could mean such a purchase as took place in the case in question where the interest of the purchaser was concealed. It does not seem impossible that the text has been abbreviated.

One conclusion to all this is that some modification should be made to the original translation. There was no undertaking that in the event of a successful lawsuit in the name of the other (presumably the creditor), a certain sum of money would be paid to Marius Paulus. The undertaking was taken in the name of someone else, to the effect that out of the proceeds of the lawsuit (ex eventu litis) a certain sum would be paid to him. The meaning of the expression maiores fructus is not entirely clear but it may be that the praetor ordered him to pay additional fruits as a penalty; maiores is suggested as an interpolation for duplos by Heumann-Seckel, perhaps following up an idea of Cujas.^[144] The ref­erence to the release of Daphnis is too free a version. A modified version of Alan’s translation may do justice to the case:

“A certain Marius Paulus had given a verbal guarantee on behalf of one Daphnis, hav­ing agreed on remuneration for giving his guarantee, and under the name of another person he had received an undertaking that a certain amount would be paid to him from the outcome of a lawsuit. He had been ordered by the praetor, Claudius Saturninus, to pay into court greater fruits [by way of penalty] and the same Saturninus had prohibited him from pleading in the courts. Now it seemed to me that he had given a verbal guarantee of payment of the judgment debt and had emerged as a sort of purchaser of the lawsuit and wanted to recover from Daphnis in an action of mandate because he had suffered condemnation. But the Deified Brothers very prop­erly declared in a rescript that he had no action on account of his sharp practice, because, having agreed on remuneration, he had entered upon such a purchase of the lawsuit. Marcellus, however, says of a person who has given a sponsio in return for financial consideration, that if it was in fact the arrangement that he should do so at his own risk he has no action, but if this was not the arrangement, he does have an extended [or effective] action available. This opinion is consistent with utility.”

The second conclusion is that wrestling with this and the previous text con­firms the interdependence of translation and interpretation and the limitations on translation of a work as rich and complex as the Digest. As generations of romanists can testify, all conclusions are provisional, and further provisional conclusions are added to the sum.