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.)
1 Gaius 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.
1 Gaius, 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.
2 Ulpianus 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.
2 Ulpianus, 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.
3 Idem 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.
3 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.
4 Idem 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.
4 The 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.
5 Paulus 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.
5 Paulus, 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.
6 Ulpianus 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.
6 Ulpianus, 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.
7 Scaevola 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.
7 Scævola, 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.
8 Paulus 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.
8 Paulus, 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.