De auctoritate et consensu tutorum et curatorum
(Concerning the authority and consent of guardians and curators.)
1 Ulpianus libro primo ad Sabinum. Quamquam regula sit iuris civilis in rem suam auctorem tutorem fieri non posse, tamen potest tutor proprii sui debitoris hereditatem adeunti pupillo auctoritatem accommodare, quamvis per hoc debitor eius efficiatur: prima enim ratio auctoritatis ea est, ut heres fiat, per consequentias contingit, ut debitum subeat. se tamen auctore ab eo stipulari non potest. et cum quidam auctoritatem accommodaret pupillae suae, ut servo suo stipulanti sponderet, divus Pius Antoninus rescripsit iure pupillam non teneri, sed in quantum locupletior facta est, dandam actionem. sed si auctor fiat, ut filio suo quid tradatur, nulla erit auctoritas: evidenter enim sua auctoritate rem adquirit. 1Tutor si invitus retentus sit per vim, non valet quod agitur: neque enim praesentia corporis sufficit ad auctoritatem, ut si somno aut morbo comitiali occupatus tacuisset.
1 Ulpianus, On Sabinus, Book I. Although it is a rule of the Civil Law that a guardian cannot be appointed for the transaction of his own business, still, a guardian can use his authority to induce his ward to accept an estate which is indebted to him; even though, by doing so, the ward will become his debtor. For the first reason for the exertion of his authority, in this instance, is that his ward may become the heir, consequently will become indebted to him. He cannot, however, by the exercise of his authority, compel his ward to enter into a stipulation with him. Where anyone employs his authority to induce his ward to make a stipulation with his slave, the Divine Antoninus Pius stated in a Rescript that the ward would not be legally liable, but an action would be granted against her for the amount which she profited by the transaction. If the guardian causes anything to be given by the ward to his son, such an exertion of his authority will be void, for it is evident that he acquires the property by his own act. 1Where a guardian is compelled forcibly and against his will to remain, any act which he performs will not be valid; for his mere corporeal presence is not sufficient, as he might be considered to have given his consent where he was silent on account of being asleep, or because he was attacked by epilepsy.
2 Idem libro vicesimo quarto ad Sabinum. Nulla differentia est, non interveniat auctoritas tutoris an perperam adhibeatur.
2 The Same, On Sabinus, Book XXIV. There is no difference in the cases where the authority of a guardian is not interposed, and where it is improperly exerted.
3 Paulus libro octavo ad Sabinum. Etiamsi non interrogatus tutor auctor fiat, valet auctoritas eius, cum se probare dicit id quod agitur: hoc est enim auctorem fieri.
3 Paulus, On Sabinus, Book VIII. Where a guardian performs an act without being asked to do so, the exertion of his authority will be valid, if he says he approves what takes place, for this is to empower it to be done.
4 Pomponius libro septimo decimo ad Sabinum. Etsi pluribus datis tutoribus unius auctoritas sufficiat, tamen si tutor auctoretur, cui administratio tutelae concessa non est, id ratum a praetore haberi non debet. et ideo puto verius esse, quod Ofilio placebat, si eo tutore auctore, qui tutelam non gerat, emam a pupillo sciens alium eius tutelam gerere, dominum me non posse fieri: item si eo auctore emam, qui a tutela fuerit remotus: nec enim id ratum haberi.
4 Pomponius, On Sabinus, Book XVII. Although where there are several guardians, the authorization of one is sufficient; still, if it should be granted by one who has not been entrusted with the administration of the guardianship, it should not be ratified by the Prætor. Therefore, I think that the better one is the opinion of Ofilius, who held that if I make a purchase from a ward by the authority of the guardian who is not administering the trust, being aware that another was administering it, I cannot become the owner of the article sold. The same rule applies if I should make such a purchase with the authority of a guardian who has been removed from office, for such a transaction should not be ratified.
5 Ulpianus libro quadragesimo ad Sabinum. Pupillus obligari tutori eo auctore non potest. plane si plures sint tutores, quorum unius auctoritas sufficit, dicendum est altero auctore pupillum ei posse obligari, sive mutuam pecuniam ei det sive stipuletur ab eo. sed et cum solus sit tutor mutuam pecuniam pupillo dederit vel ab eo stipuletur, non erit obligatus tutori: naturaliter tamen obligabitur in quantum locupletior factus est: nam in pupillum non tantum tutori, verum cuivis actionem in quantum locupletior factus est dandam divus Pius rescripsit. 1Pupillus vendendo sine tutoris auctoritate non obligetur sed nec in emendo, nisi in quantum locupletior factus est. 2Item ipse tutor et emptoris et venditoris officio fungi non potest: sed enim si contutorem habeat, cuius auctoritas sufficit, procul dubio emere potest. sed si mala fide emptio intercesserit, nullius erit momenti ideoque nec usucapere potest. sane si suae aetatis factus comprobaverit emptionem, contractus valet. 3Sed si per interpositam personam rem pupilli emerit, in ea causa est, ut emptio nullius momenti sit, quia non bona fide videtur rem gessisse: et ita est rescriptum a divo Severo et Antonino. 4Sane si ipse quidem emit palam, dedit autem nomen non mala fide sed simpliciter, ut solent honestiores non pati nomina sua instrumentis inscribi, valet emptio: quod si callide, idem erit ac si per interpositam personam emisset. 5Sed et si creditor pupilli distrahat, aeque emere bona fide poterit. 6Si filius tutoris vel quae alia persona iuri eius subiecta emerit, idem erit atque si ipse emisset.
5 Ulpianus, On Sabinus, Book XL. A ward cannot legally bind himself to his guardian by the authority of the latter. It is clear that, when there are several guardians, it must be held that the authority of one of them is sufficient to enable the ward to bind himself to another, whether he lends him money, or enters into a stipulation with him. Where, however, there is only one guardian, and he lends money to his ward, or enters into a stipulation with him, he will not be bound to the guardian, but he will be naturally liaable to him for the amount by which he has been pecuniarily benefited. For the Divine Pius stated in a Rescript that an action should be granted in favor of the guardian against the ward, and indeed against anyone else, for the amount by which he was enriched at his expense through the transaction. 1A ward who makes a purchase or a sale without the authority of his guardian will only be liable for the amount by which he profits pecuniarily. 2Moreover, a guardian cannot contract the obligation of either buyer or seller with his ward. Where, however, he has a fellow-guardian, the authority of the latter will undoubtedly be sufficient to empower him to make a purchase. But if the transaction is fraudulent it will be of no effect, and hence the property cannot be acquired by usucaption. If, however, the ward, having attained his majority, confirms the purchase, the contract will be valid. 3If a guardian should buy property of his ward through the interposition of a third party, the purchase made under such circumstances will be void, because the transaction does not appear to have been concluded in good faith. This was also stated in a Rescript by the Divine Severus and Antoninus. 4If, however, he should make the purchase openly, and give another name, not fraudulently, but without concealment, as persons of rank are accustomed to do who do not wish their names to appear on the records, the purchase will be valid. But where he makes the purchase craftily, it will be the same as if he had made it by the agency of another person. 5If the creditor of the ward should sell his property, his guardian can purchase it in good faith. 6If the son of a guardian, or any other person under his control, should purchase the property, it will be the same as if he himself had purchased it.
6 Pomponius libro septimo decimo ad Sabinum. Tutores, quibus administratio decreta non esset, tamquam extraneos recte a pupillo emere placet.
6 Pomponius, On Sabinus, Book XVII. It has been decided that guardians upon whom the administration has not been conferred by a decree, can legally purchase property from a ward, just as strangers can do.
7 Ulpianus libro quadragesimo ad Sabinum. Quod dicimus in rem suam auctoritatem accommodare tutorem non posse, totiens verum est, quotiens per semet vel subiectas sibi personas adquiritur ei stipulatio: ceterum negotium ei geri per consequentias, ut dictum est, nihil prohibet auctoritas. 1Si duo rei sint stipulandi et alter me auctore a pupillo stipuletur, alter altero tutore auctore, dicendum est stipulationem valere, sic tamen, si auctoritas tutoris unius sufficiat: ceterum si non sufficiat, dicendum erit inutilem esse stipulationem. 2Si et pater et filius qui in potestate eius fuit tutores fuerunt et pater sit stipulatus filio auctore, nullius momenti erit stipulatio idcirco, quia in rem patris auctor esse filius non potest.
7 Ulpianus, On Sabinus, Book XL. When we say that a guardian cannot grant authority to his ward to transact business with him; this is only true where the stipulation is acquired by him, or by persons under his control. But there is nothing to prevent his authority from being exercised in the transaction of any business by which his ward will be benefited. 1Where there are two creditors, and one of them stipulates for the payment of the debt by a ward, under the authority of one guardian, and the other stipulates for its payment by the ward with the authority of another guardian, it must be held that the stipulation is valid, provided the authority of one guardian is sufficient; but if it is not sufficient, it must be said that the stipulation is void. 2Where a father and his son, who is under his control, are both guardians, and the father stipulates with the authority of the son, the stipulation will be of no effect, and this is the case because the son cannot authorize any transaction in which his father is concerned.
8 Idem libro quadragesimo octavo ad Sabinum. Etsi condicionalis contractus cum pupillo fiat, tutor debet pure auctor fieri: nam auctoritas non condicionaliter, sed pure interponenda est, ut condicionalis contractus confirmetur.
8 The Same, On Sabinus, Book XLVIII. Even where the contract with a ward is conditional, the consent of the guardian should be absolute; for his authority must be not conditionally, but absolutely interposed, in order that a conditional contract may be confirmed.
9 Gaius libro duodecimo ad edictum provinciale. Obligari ex omni contractu pupillus sine tutoris auctoritate non potest: adquirere autem sibi stipulando et per traditionem accipiendo etiam sine tutoris auctoritate potest: sed credendo obligare sibi non potest, quia sine tutoris auctoritate nihil alienare potest. 1Ex hoc autem, quod pupillus nullam rem sine tutoris auctoritate alienare potest, apparet nec manumittere eum sine tutoris auctoritate posse. hoc amplius licet tutoris auctoritate manumittat, debet e lege Aelia Sentia apud consilium causam probare. 2Pupillus ex omnibus causis solvendo sine tutoris auctoritate nihil agit, quia nullum dominium transferre potest: si tamen creditor bona fide pecuniam pupilli consumpserit, liberabitur pupillus. 3Hereditatem adire pupillus sine tutoris auctoritate non potest, quamvis lucrosa sit nec ullum habeat damnum. 4Nec ex senatus consulto Trebelliano hereditatem recipere pupillus sine tutoris auctoritate potest. 5Tutor statim in ipso negotio praesens debet auctor fieri, post tempus vero aut per epistulam interposita eius auctoritas nihil agit. 6Etiamsi non exaudiat tutoris auctoritatem is qui cum pupillo contrahit, scriptis tamen hoc adprobetur, recte negotium geritur, veluti si absenti pupillo per epistulam vendam aliquid aut locem et is tutoris auctoritate consentiat.
9 Gaius, On the Provincial Edict, Book XII. A ward cannot be rendered liable by any contract without the authority of his guardian; he can, however, acquire property for himself by means of a stipulation, as well as by delivery, without the authority of his guardian, but he cannot bind himself by lending money, because he cannot alienate anything without the authority of his guardian. 1With reference to the rule that a ward cannot alienate any property without the authority of his guardian, it is evident that he cannot manumit his slaves without his consent, and even if he should manumit a slave with the authority of his guardian, he must, in accordance with the Lex Ælia Sentia, give a good reason for doing so, in the presence of the Council. 2Where a ward, for any reason, makes a payment without the authority of his guardian, his act is void, because he cannot transfer the ownership of anything. Where, however, the creditor, in good faith, spends the money repaid by the ward, the latter will be released. 3A ward cannot enter upon an estate without the consent of his guardian, even though it may be advantageous to him, and he suffers no loss by doing so. 4Under the Trebellian Decree of the Senate, a ward cannot receive an inheritance without the consent of his guardian. 5The guardian ought to be present and authorize the transaction, and his consent will be of no effect if subsequently given, or communicated by letter. 6Even if the party who makes a contract with a ward does not know that the authority of the guardian was granted, still, if this can be proved by written evidence, the transaction will be valid; for example, if I sell or rent anything by letter to a ward who is absent, and he gives his consent, after having been authorized by his guardian.
10 Paulus libro vicesimo quarto ad edictum. Tutor, qui per valetudinem vel absentiam vel aliam iustam causam auctor fieri non potuit, non tenetur.
10 Paulus, On the Edict, Book XXIV. A guardian who, on account of sickness, absence, or any other good reason, cannot authorize his ward to perform some act, will not be liable.
11 Gaius libro quinto decimo ad edictum provinciale. Si ad pupillum aut furiosum bonorum possessio pertineat, expediendarum rerum gratia et in agnoscenda et in repudianda bonorum possessione voluntatem tutoris curatorisque spectari debere placuit: qui scilicet si quid eorum contra commodum pupilli furiosive fecerint, tutelae curationisve iudicio tenebuntur.
11 Gaius, On the Provincial Edict, Book XV. Where a ward or an insane person is entitled to the possession of an estate for the purpose of expediting matters, it is established that the wishes of the guardian or curator must be consulted in the acceptance or the repudiation of the estate; and it is clear that if he does anything contrary to the interest of the said ward or insane person, he will be liable to an action on guardianship or curatorship.
12 Iulianus libro vicesimo primo digestorum. Si servus communis tuus et Titii a pupilla tua te auctore aliquam rem per traditionem acceperit, tota ad Titium pertinebit. Marcellus notat: nam quodcumque ad omnes dominos non potest pertinere, id pro solido ad eum, cui adquiri potest, pertinere veteres comprobaverunt.
12 Julianus, Digest, Book XXI. If a slave owned in common by you and Titius should receive any property by delivery from your ward with your consent, Marcellus states that its ownership will vest solely in Titius; for where anything cannot be acquired by all the owners of a slave, the ancient authorities have held that it will belong in its entirety to the one by whom it can be acquired.
13 Iulianus libro vicesimo primo digestorum. Impuberes tutore auctore obligantur, etiamsi taceant: nam cum pecuniam mutuam acceperint, quamvis nihil dicant, auctoritate tutoris interposita tenentur. quare et si non debita pecunia his personis soluta fuerit, quamvis tacuerint, interposita tutoris auctoritas sufficit, ut condictione teneantur.
13 The Same, Digest, Book XXI. Minors are bound by the authority of their guardians, even though they themselves remain silent. For when they borrow money even though they may say nothing, they will be liable, if the authority of their guardian is interposed. Hence, where money which is not due is paid to such persons, even if they should keep silent, the interposition of the authority of their guardian will be sufficient to render them liable to a personal action for its recovery.
14 Idem libro trigesimo primo digestorum. Non multum interest, afuerit tutor, cum negotium contraheretur, an praesens ignoraverit, quale esset quod contrahebatur.
14 The Same, Digest, Book XXXI. It does not make much difference whether a guardian is absent when any business is transacted with his ward, or whether, if he is present, he is not aware of what is being done.
15 Marcianus libro secundo regularum. Accipientis et edentis iudicium idem tutor auctor utrique fit. sed hoc utrum ita est, si bis auctor factus est, an et una auctoritas sufficiat eo animo, ut ad utrumque pertineat? dubitat quidem Pomponius, sed fortiter defenditur sufficere unam auctoritatem.
15 Marcianus, Rules, Book II. The same guardian can grant his authority to two wards in a case where one is plaintiff and the other defendant. In case, however, he should act in this twofold capacity, will a single authorization be sufficient, under these circumstances, for both the wards? Pomponius is in doubt on this point, but it may be strongly maintained that a single authorization will suffice.
16 Paulus libro primo ad legem Aeliam Sentiam. Etiamsi tutor caecus factus sit, auctor fieri potest.
16 Paulus, On the Lex Ælia Sentia. Even if a guardian should become blind, he can authorize the performance of acts by his ward.
17 Idem libro sexto ad edictum. Si tutor pupillo nolit auctor fieri, non debet eum praetor cogere, primum quia iniquum est, etiamsi non expedit pupillo, auctoritatem eum praestare, deinde etsi expedit, tutelae iudicio pupillus hanc iacturam consequitur.
17 The Same, On the Edict, Book VI. Where a guardian is unwilling to grant authority to his ward, the Prætor should not compel him to do so; in the first place, because it would be unjust, even if it was not expedient, to force him to give his consent; and then, even if it was expedient, the ward can bring an action on guardianship on account of the loss he has sustained.
18 Idem libro primo ad Plautium. Potest pupillus tutore auctore debitorem suum Titio delegare: sed cum tutor debet pupillo, dicendum est neque delegari eum neque procuratorem adversus tutorem dari ipso tutore auctore posse, quia futurum sit, ut auctoritate sua liberetur.
18 The Same, On Plautius, Book I. A ward, with the consent of his guardian, can transfer his debtor to Titius. Where, however, a guardian is indebted to his ward, it must be said that he cannot be transferred, nor can an agent be appointed to act against the guardian, with the authority of the latter; otherwise, the guardian would be released from liability by his own act.
19 Idem libro nono responsorum. Curatorem etiam impuberi dari posse, sed ad ea, quae sollemnitatem iuris desiderant, explicanda tutore auctore opus esse.
19 The Same, Opinions, Book IX. A curator can even be appointed for anyone under the age of puberty, but a guardian is required for the settlement of all matters which involve the formalities of law.
20 Scaevola libro decimo digestorum. Inter pupillos paternae hereditatis divisio facta est praesente tutore, sed non adsignante instrumento divisionis: quaesitum est, an ei stari oporteret. respondit, si tutor auctor fuisset, non idcirco minus standum esse divisioni, quod non adsignasset.
20 Scævola, Digest, Book X. A division of the estate of their father was made by certain wards in the presence of their guardian, who, however, did not sign the instrument of partition. The question arose whether they must abide by it. The answer was, if the guardian authorized it, the partition must stand, even if he did not sign the instrument.
21 Idem libro vicesimo sexto digestorum. Defendente tutore pupillus condemnatus ex contractu patris accepit curatorem, inter quem et creditorem acta facta sunt apud procuratorem Caesaris infra scripta. Priscus procurator Caesaris dixit: ‘faciat iudicata’. novellius curator dixit: ‘abstineo pupillum’. Priscus procurator Caesaris dixit: ‘responsum habes: scis, quid agere debeas’. quaesitum est, an secundum haec acta adulescens a bonis patris abstentus sit. respondit proponi abstentum.
21 The Same, Digest, Book XXVI. A ward, having had judgment rendered against him on account of a contract made with his father, after having been defended by his guardian, received a curator, between whom and the creditor the following transaction took place in the presence of the Steward of the Emperor: Priscus, the Imperial Steward, said: “Let the judgment be executed”; Novellius, the curator, said: “I order the ward to reject the estate”; Priscus, the Steward of the Emperor, said: “You are answered, you know what you have to do”. The question arose whether, in consequence of this proceeding, the minor should be considered to have rejected the estate of his father. The answer was that, in accordance with the facts stated, he should be held to have rejected it.
22 Labeo libro quinto pithanon. Si quid est, quod pupillus agendo tutorem suum liberaturus est, id ipso tutore auctore agi recte non potest.
22 Labeo, Probabilities, Book V. If anything which the ward does would tend to release his guardian from liability to him, the guardian cannot legally consent for him to do it.