Corpus iurisprudentiae Romanae

Repertorium zu den Quellen des römischen Rechts

Digesta Iustiniani Augusti

Recognovit Mommsen (1870) et retractavit Krüger (1928)
Convertit in Anglica lingua Scott (1932)
Dig. XIV5,
Quod cum eo, qui in aliena potestate est, negotium gestum esse dicetur
Liber quartus decimus
V.

Quod cum eo, qui in aliena potestate est, negotium gestum esse dicetur

(Concerning Transactions Said to Have Taken Place With a Person Under the Control of Another.)

1Gaius li­bro no­no ad edic­tum pro­vin­cia­le. Om­nia pro­con­sul agit, ut qui con­tra­xit cum eo, qui in alie­na po­tes­ta­te sit, et­iam­si de­fi­cient su­pe­rio­res ac­tio­nes, id est ex­er­ci­to­ria in­sti­to­ria tri­bu­to­ria­ve, ni­hi­lo mi­nus ta­men in quan­tum ex bo­no et ae­quo res pa­ti­tur suum con­se­qua­tur. si­ve enim ius­su eius, cu­ius in po­tes­ta­te sit, neg­otium ges­tum fue­rit, in so­li­dum eo no­mi­ne iu­di­cium pol­li­ce­tur: si­ve non ius­su, sed ta­men in rem eius ver­sum fue­rit, ea­te­nus in­tro­du­cit ac­tio­nem, qua­te­nus in rem eius ver­sum fue­rit: si­ve ne­utrum eo­rum sit, de pe­cu­lio ac­tio­nem con­sti­tuit.

1Gaius, On the Provincial Edict, Book IX. The Proconsul takes every precaution to enable one party who has contracted with another that is under the control of a third, where the above mentioned actions (that is to say the exercitorian, the institorian, and the tributorian) do not apply, to still obtain his rights, so far as circumstances permit, on the grounds of equity and justice. For if the business was transacted by the order of the party under whose control the person in question is, he promises an action for the entire amount with reference to the same; but if this did not take place under his direction, but he, nevertheless, profited by it, the Proconsul introduces an action to the extent to which this has been done, and if neither of these conditions exist, he establishes an action for the amount of the peculium.

2Ul­pia­nus li­bro vi­cen­si­mo no­no ad edic­tum. Ait prae­tor: ‘In eum, qui em­an­ci­pa­tus aut ex­he­redatus erit qui­ve abs­ti­nuit se he­redi­ta­te eius cu­ius in po­tes­ta­te cum mo­ri­tur fue­rit, eius rei no­mi­ne, quae cum eo con­trac­ta erit, cum is in po­tes­ta­te es­set, si­ve sua vo­lun­ta­te si­ve ius­su eius in cu­ius po­tes­ta­te erit con­tra­xe­rit, si­ve in pe­cu­lium ip­sius si­ve in pa­tri­mo­nium eius cu­ius in po­tes­ta­te fue­rit ea res red­ac­ta fue­rit, ac­tio­nem cau­sa co­gni­ta da­bo in quod fa­ce­re pot­est.’ 1Sed et si ci­tra em­an­ci­pa­tio­nem sui iu­ris fac­tus sit vel in ad­op­tio­nem da­tus, de­in­de pa­ter na­tu­ra­lis de­ces­se­rit, item si quis ex mi­ni­ma par­te sit in­sti­tu­tus, ae­quis­si­mum est cau­sa co­gni­ta et­iam in hunc da­ri ac­tio­nem in id quod fa­ce­re pot­est.

2Ulpianus, On the Edict, Book XXIX. The Prætor says: “After proper cause is shown I will grant an action for the amount that the party is able to pay against anyone who is emancipated or disinherited, or who has rejected the estate of the person under whose control he was at the time the former died; whether the business was transacted on his own responsibility, or with the consent of the party to whose control he was subject; and whether this was done for the benefit of his own peculium, or for that of the estate of him under whose control he was.” 1Further, if he had become his own master without emancipation, or was given in adoption and his natural father afterwards died, and, moreover, if he had been appointed heir to a very small share of the estate, it is perfectly just that, after investigation, an action should be granted against him for the amount that he is able to pay.

3Idem li­bro ter­tio dis­pu­ta­tio­num. Sed an hic de­tra­hi de­beat quod aliis de­be­tur, trac­ta­ri pot­est. et si qui­dem sint cre­di­to­res, qui, cum es­set alie­nae po­tes­ta­tis, cum eo con­tra­xe­runt, rec­te di­ce­tur oc­cu­pan­tis me­lio­rem es­se con­di­cio­nem, ni­si si quis pri­vi­le­gia­rius ve­niat: hu­ius enim non si­ne ra­tio­ne prio­ris ra­tio ha­be­bi­tur. quod si qui sint, qui, post­ea­quam sui iu­ris fac­tus est, cum eo con­tra­xe­runt, pu­to ho­rum ra­tio­nem ha­ben­dam.

3Ad Dig. 14,5,3Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 268, Note 2.The Same, Disputations, Book III. Should it be discussed in this instance whether what is due to others should be deducted? And, indeed if the parties who contracted with him when he was under the control of another are creditors, it may properly be held that the position of the prior claimant is the preferable one; except where there is a privileged creditor, for, not without reason consideration will be paid to this prior creditor. But if there are creditors who contracted with him after he became his own master, I think that they should be considered.

4Idem li­bro vi­cen­si­mo no­no ad edic­tum. Sed si ex par­te non mo­di­ca sit he­res scrip­tus fi­lius, in ar­bi­trio est cre­di­to­ris, utrum pro por­tio­ne he­redi­ta­ria an in so­li­dum eum con­ve­niat. sed et hic iu­dex aes­ti­ma­re de­beat, ne for­te in id quod fa­ce­re pot­est de­beat con­ve­ni­ri. 1In­ter­dum au­tem et si ex­he­redatus fi­lius vel em­an­ci­pa­tus sit, in so­li­dum ac­tio ad­ver­sus eum da­bi­tur, ut pu­ta si pa­trem fa­mi­lias se men­ti­tus est, cum con­tra­he­re­tur cum eo: nam li­bro se­cun­do di­ges­to­rum Mar­cel­lus scrip­sit, et­iam­si fa­ce­re non pos­sit, con­ve­nien­dum prop­ter men­da­cium. 2Quam­quam au­tem ex con­trac­tu in id quod fa­ce­re pot­est ac­tio in eum da­tur, ta­men ex de­lic­tis in so­li­dum con­ve­nie­tur. 3So­li au­tem fi­lio suc­cur­ri­tur non et­iam he­redi eius: nam et Pa­pi­nia­nus li­bro no­no quaes­tio­num scri­bit in he­redem fi­lii in so­li­dum dan­dam ac­tio­nem. 4Sed an et­iam tem­po­ris ha­be­ri de­beat ra­tio, ut, si qui­dem ex con­ti­nen­ti cum fi­lio aga­tur, de­tur ac­tio in id quod fa­ce­re pot­est, sin ve­ro post mul­tos an­nos, non de­beat in­dul­ge­ri? et mi­hi vi­de­tur ra­tio­nem ha­ben­dam es­se: in hoc enim cau­sae co­gni­tio ver­ti­tur. 5Is qui de pe­cu­lio egit, cum pos­set quod ius­su, in ea cau­sa est, ne pos­sit quod ius­su post­ea age­re, et ita Pro­cu­lus ex­is­ti­mat: sed si de­cep­tus de pe­cu­lio egit, pu­tat Cel­sus suc­cur­ren­dum ei: quae sen­ten­tia ha­bet ra­tio­nem.

4The Same, On the Edict, Book XXIX. But where the son is appointed heir of a larger portion of the estate, it is in the choice of the creditor whether he will sue him for the share of the estate to which he is entitled, or for the entire amount of the claim. In this instance also it is the duty of the judge to decide whether he should be sued only for the amount which he is able to pay. 1Sometimes, however, if the son is disinherited or emancipated, an action will be granted against him for the entire amount; for example, if, when the contract was made with him, he denied that he was the head of the household; for Marcellus stated in the Second Book of the Digest that an action can be brought against him on account of his falsehood, even if he is not able to pay. 2Although an action can be brought against him on his contracts only for the amount that he is able to pay, still, he may be sued for the entire amount on account of his offences. 3Relief is granted to the son alone, and not to his heir also; for Papinianus states in the Ninth Book of Questions that an action for the entire indebtedness should be granted against the heir of the son. 4But ought not the lapse of time be considered, so that, if proceedings are instituted without delay against the son, the action may be granted for what he is able to pay, but if many years have elapsed he should not be indulged in this way? It seems to me that it ought to be considered, for the investigation of the case will include this. 5Where a party brings suit on the peculium when he could have brought an action on the ground of having been expressly authorized, he is in the position of not being able subsequently to bring an action on the ground of special authority given; and this is the opinion of Proculus. But if the plaintiff, having been deceived, brings the action De peculio, Celsus thinks that he is entitled to relief, and this opinion is reasonable.

5Pau­lus li­bro tri­gen­si­mo ad edic­tum. Si fi­lius fa­mi­lias vi­vo pa­tre con­ven­tus et con­dem­na­tus sit, in em­an­ci­pa­tum vel ex­he­redatum post­ea iu­di­ca­ti ac­tio in id quod fa­ce­re pot­est dan­da est. 1Si fi­lio ex­he­redato ex se­na­tus con­sul­to Tre­bel­lia­no he­redi­tas pa­tris re­sti­tu­ta sit, non de­be­bit in quan­tum fa­ce­re pot­est, sed in so­li­dum con­dem­na­ri, quia ef­fec­tu quo­dam­mo­do he­res est. 2Sed si co­ac­tus im­mis­cue­rit se, ut re­sti­tuat he­redi­ta­tem, per­in­de ob­ser­van­dum, ac si se abs­ti­nuis­set.

5Paulus, On the Edict, Book XXX. Where a son under paternal control is sued and has judgment rendered against him during the lifetime of his father, an action on the judgment should be granted against him to the extent of his ability to pay, if he has been subsequently emancipated or disinherited. 1If the estate of his father has been restored to a disinherited son under the Trebellian Decree of the Senate, judgment should not be rendered against him to the extent of his capacity to pay, but for the entire amount, because, in fact, he is, in some respects, an heir. 2But if, having been forced to do so, he has interfered with the estate for the purpose of transferring it, the same proceedings should be taken as if he had rejected it.

6Ul­pia­nus li­bro se­cun­do dis­pu­ta­tio­num. Eum, qui se pa­trem fa­mi­lias si­mu­la­vit et man­dan­te ali­quo sti­pu­la­tus est, man­da­ti te­ne­ri Mar­cel­lus scribsit, quam­vis rem prae­sta­re non pos­sit: et sa­ne ve­rum est te­ne­ri eum de­be­re, quia do­lo fe­cit. hoc et in om­ni­bus bo­nae fi­dei iu­di­ciis di­cen­dum erit.

6Ulpianus, Disputations, Book II. Marcellus states that a person who pretends to be the head of a family and enters into a stipulation under the direction of any one, is liable to an action on mandate, even though he cannot make good the amount; and, in fact, it is true that he should be liable, because he has been guilty of fraud. This also can be said with reference to all actions based on good faith.

7Scae­vo­la li­bro pri­mo re­spon­so­rum. Pa­ter fi­lio per­mi­sit mu­tuam pe­cu­niam ac­ci­pe­re et per epis­tu­lam cre­di­to­ri man­da­vit, ut ei cre­de­ret: fi­lius ex mi­ni­ma par­te pa­tri he­res ex­sti­tit. re­spon­di es­se in po­tes­ta­te cre­di­to­ris, utrum fi­lium, cui cre­di­dis­set, in so­li­dum, an he­res, pro qua par­te quis­que suc­ces­sis­set, mal­let con­ve­ni­re: sed fi­lius con­dem­na­tur in quan­tum fa­ce­re pot­est.

7Scævola, Opinions, Book I. A father allowed his son to borrow money, and directed the creditor by letter to lend it to him, and the son became an heir to his father for a very small portion of the estate. I answered that the creditor could decide whether he would prefer to sue the son, to whom he had lent the money, for the entire amount, or the heirs, each in proportion to the share to which he had succeeded. Judgment was rendered against the son to the extent of his capacity to pay.

8Pau­lus li­bro pri­mo de­cre­to­rum. Ti­tia­nus Pri­mus prae­po­sue­rat ser­vum mu­tuis pe­cu­niis dan­dis et pig­no­ri­bus ac­ci­pien­dis: is ser­vus et­iam neg­otia­to­ri­bus hor­dei so­le­bat pro emp­to­re sus­ci­pe­re de­bi­tum et sol­ve­re. cum fu­gis­set ser­vus et is, cui dele­ga­tus fue­rat da­re pre­tium hor­dei, con­ve­ni­ret do­mi­num no­mi­ne in­sti­to­ris, ne­ga­bat eo no­mi­ne se con­ve­ni­ri pos­se, quia non in eam rem prae­po­si­tus fuis­set. cum au­tem et alia quae­dam ges­sis­se et hor­rea con­du­xis­se et mul­tis sol­vis­se idem ser­vus pro­ba­re­tur, prae­fec­tus an­no­nae con­tra do­mi­num de­de­rat sen­ten­tiam. di­ce­ba­mus qua­si fi­de­ius­sio­nem es­se vi­de­ri, cum pro alio sol­ve­ret de­bi­tum, non pro aliis sus­ci­pit de­bi­tum: non so­le­re au­tem ex ea cau­sa in do­mi­num da­ri ac­tio­nem nec vi­de­tur hoc do­mi­num man­das­se. sed quia vi­de­ba­tur in om­ni­bus eum suo no­mi­ne sub­sti­tuis­se, sen­ten­tiam con­ser­va­vit im­pe­ra­tor.

8Paulus, Decrees, Book I. Titianus Primus appointed a slave for the purpose of lending money and taking pledges; and the said slave was also accustomed to bind himself for, and to pay the obligations of persons who dealt in barley. The slave having run away, and the party to whom he had been substituted to pay the price of the barley having sued his master on account of the business manager, he denied he could be sued on this ground, because he had not been appointed for the transaction of this business. But as it was proved that the same slave had transacted other business and had rented granaries, and paid money to many people, the Prefect of Subsistence rendered a decision against the master. We stated that he appeared to be a kind of surety, since he was paying the debts of another, for he assumed payment in behalf of others, but that it was not usual for an action to be granted against a master for a reason of this kind, nor did it appear that the master had directed him to do this. But as he seemed to have appointed the slave to act in his behalf in all these transactions, the Emperor confirmed the decision.