Francisci Hotomani iurisconsulti observationum liber IIII

it was not being asked whether a person donated for the sake of manumission was free by the law itself, but only whether, because he had not been manumitted, the penalty could be demanded from the stipulation. Scaevola affirms this most correctly, because even if that question had been proposed after the rescript of Marcus, and even if that human had been free by the law itself and by the benefit of the Marcian constitution, nevertheless the penalty included in the stipulation was still owed, for the reason that he had not in fact been manumitted by the buyer. For although it did not concern the donor, it is established that an action from stipulation holds even when it does not matter. Law "stipulation" 38, section "to another," Digest, on that title. But the tyrant Diocletian established the contrary by his authority in the last law, Code, "if slaves have been sold in such a way." Nor do I agree with those who think that Scaevola, in that place, held onto the words of the Marcian constitution so stubbornly that, since it had been written about a sold human, he did not want it applied to a donated one. Since, however, it is customary for the interpretations of those constitutions which are about liberty to be applied benignly as far as the matter allows. Law "generally," section "if anyone to a slave," Digest, on trust of liberty, which Papinianus did without hesitation in the penultimate law, Digest, on those who are not to be manumitted; law "the cause" 20, Digest, on manumissions; and much more Paulus in law "Paulus" 38, Digest, on causes of liberty. Likewise the Emperor in law 1, Code, "if slaves have been sold in such a way," although in a donor husband it is otherwise: since that donation does not change ownership. Law 7, section "to a wife," Digest, on donations between husband and wife. But one can object with law "if a farm" 81, section "Stichus," Digest, on legacies 1, where the constitution of Marcus is not extended to a bequeathed slave. But it should have been noted that that law is from the books of Iulianus, who flourished during the reign of Hadrian, and he followed that same constitution of Hadrian