Commentaries on the Last Two Titles of the Digest

3. Cujacius, 5 observations 39 and 15 observations 23, reads from the books of the Basilica the Greek collection of Roman law: "His is the power not to will" (μὴ θέλειν) "who can will." But Cujacius himself admits in the first book, published under the persona of Antonius Mercator, chapter final, that this writing differs little or nothing from the common one. In that tractate, he argues against Robertus Aurelianensis, whom in the said chapter 23 and 16 observations 32 he marks with these words, "Born late in the world," that is, by anagram, JOANNES ROBERTUS. He also transposed the name of his adversary in 1 advices, chapter final thus: Suavi cibo viscas original: "Suavi cibo viscas", that is, by a transposition of letters, JACOBUS CUJACIUS:

You ensnare the auditory deceived by sweet food,
Noble made by this hunting alone.

4. Conversely, his is the power to will who can refuse. For thus Seneca, book 2, On benefits, chapter 18: "If you wish to know if I will: make it so that I can refuse." And Triphoninus says that a captive cannot consent to the marriage of his son, since he cannot even dissent, Law: In war. 12, paragraph "in the middle," 3, On captives and postliminium return. Aristotle, 3, Nicomachean Ethics: ἐν οἷς γὰρ ἐφ' ἡμῖν τὸ πράττειν, καὶ τὸ μὴ πράττειν. καὶ ἐν οἷς τὸ μὴ, καὶ τὸ ναί. For in those things in which it is in our power to act, it is also in our power not to act. And conversely, in those in which it is not, it is not in our power to act.

5. Certain cases are to be excepted from this rule.