Francisci Hotomani iurisconsulti observationum liber IIII

Likewise: "It was acted between them that if he had sworn that he ought not to give, one should depart from every condition." For since an oath obtains the force of a judged matter, and so the adversary constitutes the adversary as judge of the controversy. We see it said everywhere, "Through an oath provided by agreement one departs from every contention": as law "if anyone had sworn" 43, Digest, on condition of indebtment; law "for the condemned" 18, Code, from what causes infamy; similarly that one departs from every controversy through an oath, in law "oath" 40, Digest, on oaths; law 1, section 2, Digest, on those things by which exceptions are made.

Fatal damages. Emended law "with two" 52, section 2, Digest, for partnership. CHAPTER VII.

"Damages which happen to the imprudent" (says Ulpianus), "that is, fatal damages, partners are not compelled to provide." I judge it should be emended to "PRUDENT." First, because he opposes thefts, which he denies can happen to prudent and diligent persons, to fatal damages. Therefore (he says) if livestock has been given estimated, and it has perished by robbery or fire, it is a common damage. But if it has been stolen by thieves, it is the owner's own detriment. If thefts happen to the imprudent, and fatal damages are opposed to thefts, it is consistent that those happen to the prudent. Then, it is sufficiently established that fatal cases are called those which cannot be provided for by human counsel. Law "which fortuitous" 5, Code, on pledge actions; law 2, section "if at that time," Digest, on the administration of things belonging to the city; law 1, section "this also," Digest, on obligations and actions; law 4, Code, on the danger of tutors. A fatal case is that which cannot be provided for by human counsel. The said law 2, section "if at that time."

A decorative initial D introduces Chapter VII.