De contraria tutelae et utili actione
(Concerning the counter-action on guardianship and the prætorian action.)
1 Ulpianus libro trigesimo sexto ad edictum. Contrariam tutelae actionem praetor proposuit induxitque in usum, ut facilius tutores ad administrationem accederent scientes pupillum quoque sibi obligatum fore ex sua administratione. quamquam enim sine tutoris auctoritate pupilli non obligentur nec in rem suam tutor obligare pupillum possit, attamen receptum est, ut tutori suo pupillus sine tutoris auctoritate civiliter obligetur ex administratione scilicet. etenim provocandi fuerant tutores, ut promptius de suo aliquid pro pupillis impendant, dum sciunt se recepturos id quod impenderint. 1Haec actio non solum tutori, verum etiam ei, qui pro tutore negotia gessit, competere debet. 2Sed et si curator sit vel pupilli vel adulescentis vel furiosi vel prodigi, dicendum est etiam his contrarium dandum. idem in curatore quoque ventris probandum est. quae sententia Sabini fuit existimantis ceteris quoque curatoribus ex isdem causis dandum contrarium iudicium. 3Finito autem officio hanc actionem competere dicemus tutori: ceterum quamdiu durat, nondum competit. sed si pro tutore negotia gessit vel etiam curam administravit, locus erit iudicio etiam statim, quia hoc casu in ipsum quoque statim actio competit. 4Praeterea si tutelae iudicio quis convenietur, reputare potest id quod in rem pupilli impendit: sic erit arbitrii eius, utrum compensare an petere velit sumptus. quid ergo, si iudex compensationis eius rationem non habuit, an contrario iudicio experiri possit? et utique potest: sed si reprobata est haec reputatio et adquievit, non debet iudex contrario iudicio id sarcire. 5An in hoc iudicio non tantum quae pro pupillo vel in rem eius impensa sunt veniant, verum etiam ea quoque, quae debebantur alias tutori, ut puta a patre pupilli si quid debitum fuit, quaeritur. et magis puto, cum integra sit actio tutori, non esse in contrarium iudicium deducendum. 6Quid tamen si ideo exspectavit, quia tutor erat et ideo non exegit? videamus, an contrario iudicio tutelae indemnitatem consequatur. quod magis probandum est: nam sicuti quodcumque aliud gessit pro utilitate pupilli, id contrario iudicio consequetur, ita etiam id quod sibi debetur consequi debet vel eius securitatem. 7Ego et si ex causa, quae tempore finitur, obligatio aliqua fuit, tutelae contrarium iudicium esse ei opinor. 8Hanc actionem dandam placet et si tutelae iudicio non agatur: etenim nonnumquam pupillus idcirco agere tutelae non vult, quia nihil ei debetur, immo plus in eum impensum est, quam quod ei abest, nec impediendus est tutor contrario agere.
1 Ulpianus, On the Edict, Book XXXVI. The Prætor granted a counter-action on guardianship, and introduced it in order that guardians might the more readily accept the management of the trust; being aware that the wards would also be bound to them as the result of their administration. For although wards are not liable without the consent of their guardians, neither can a guardian compel his ward to encumber his property in his favor; still, it is admitted that a ward can be civilly responsible to his guardian as the result of his administration. For guardians must be urged in order to induce them to pay anything out of their own property for the benefit of their wards, though they know that they will be reimbursed for what they have expended. 1This action will lie, not only against a guardian, but also against anyone who transacts business in his behalf. 2It must be said, moreover, that where there is a curator either of a ward, a minor, an insane person or a spendthrift, the counteraction should also be granted to him. The same rule has been established with reference to the curator of an unborn child. This was the opinion of Sabinus, who held that the counter-action should also be granted to other curators for the same reasons. 3We hold that this action is available by a guardian after his term of office has expired, but so long as it lasts it will not lie. Where, however, a party transacts business in behalf of a guardian, or even administers a curatorship, there is ground for this action without delay, because in this instance, an action can also immediately be brought against him. 4Moreover, where anyone is sued in an action on guardianship, he can include in his account whatever he has expended on behalf of his ward. Therefore, it will be at his option to determine whether he will demand a set-off, or bring suit for his expenses. But what if the judge is unwilling to accept the account of his set-off, can he avail himself of the counter-action? He can undoubtedly do so. Where, however, his account has been rejected, and he has acquiesced, if he brings the counter-action, the judge ought not to decide that he shall be reimbursed for what he has expended. 5The question arises whether, in a proceeding of this kind, not only the expenses incurred for the benefit of the ward or for that of his property shall be included, but also whatever is owing to the guardian for other reasons (as, for instance, by the father of the ward, if anything should be due). I think the better opinion is that as the action brought by the guardian is undisputed, the counter-action should not be considered. 6Let us see, however, what should be done where the guardian had deferred reimbursing himself on account of his office, and therefore did not collect what was due to him. Can he be indemnified by means of a counter-action on guardianship? The latter seems to be the best opinion, for just as whatever the guardian has expended for the benefit of his ward can be recovered by the counter-action, so also he should recover what is due to himself, or obtain sufficient security for the claim. 7I think that if an obligation arises for any cause which is barred by lapse of time, the counter-action on guardianship will lie. 8It is held that this action should be granted even if suit is not brought in an action on guardianship, for sometimes the ward is not willing to institute proceedings on guardianship, for the reason that nothing is owing to him; or, on the other hand, more expense has been incurred in his behalf than should have been done; in which instance, the guardian should not be prevented from bringing the counteraction.
2 Iulianus libro vicesimo primo digestorum. Longe magis dandum est et si rationibus distrahendis actio intendatur.
2 Julianus, Digest, Book XXI. There is still more reason for granting this action, where suit is brought for the misappropriation of property by the guardian.
3 Ulpianus libro trigesimo sexto ad edictum. Quid ergo si plus in eum impendit, quam est in facultatibus? videamus an possit hoc consequi. et Labeo scripsit posse. sic tamen accipiendum est, si expedit pupillo ita tutelam administrari: ceterum si non expedit, dicendum est absolvi pupillum oportere: neque enim in hoc administrantur tutelae, ut mergantur pupilli. iudex igitur, qui contrario iudicio cognoscit, utilitatem pupilli spectabit et an tutor ex officio sumptus fecerit. 1Contrarium iudicium an ad hoc quoque competat, ut quis a pupillo exigat liberationem, videndum est. et nemo dixit in hoc agere quem contrario posse, ut tutelae iudicio liberetur, sed tantum de his, quae ei propter tutelam absunt. consequitur autem pecuniam, si quam de suo consumpsit, etiam cum usuris, sed vel trientibus, vel his quae in regione observantur, vel his quibus mutuatus est, si necesse habuit mutuari, ut pupillo ex iusta causa prorogaret, vel his a quibus pupillum liberavit, vel quibus caruit tutor, si nimium profuit pupillo pecuniam esse exsolutam. 2Plane si forte tutor aliquid pecuniae debuit faenerare, aliquid ipse pro pupillo solvit, nec ipse usuras consequitur nec pupillo praestabit. 3Quare et si in usus suos convertit, deinde aliquid impendit in rem pupillarem, quam impendit desinit vertisse et exinde usuras non praestabit. et si ante impendit in rem pupillarem, mox in usus suos vertit, non videbitur vertisse quantitatem, quae concurrit cum quantitate sibi debita, ut eius summae non praestet usuras. 4Usuras utrum tamdiu consequetur tutor quamdiu tutor est, an etiam post finitam tutelam, videamus, an ex mora tantum. et magis est, ut, quoad ei reddatur pecunia, consequatur: nec enim debet ei sterilis esse pecunia. 5Si tamen fuit in substantia pupilli unde consequetur, dicendum est non oportere eum usuras a pupillo exigere. 6Quid ergo, si de re pupillari non potuit sibi solvere, quia erat deposita ad praediorum comparationem? si quidem non postulavit a praetore, ut promatur pecunia vel hoc minus deponatur, sibi imputet: si vero hoc desideravit nec impetravit, dicendum est non deperire ei usuras. 7In contrario iudicio sufficit tutori bene et diligenter negotia gessisse, etsi eventum adversum habuit quod gestum est. 8Iudicio contrario tutelae praestatur et id, quod in rem pupilli versum ante tutelam vel post tutelam, si negotiis tutelae tempore gestis nexum probatur, et quod ante impensum est, sive pro tutore negotia gessit et postea tutor constitutus est, vel ventri erat curator: sed et si non pro tutore negotia gerebat, debet venire quod ante impensum est: deducuntur enim in tutelae iudicium sumptus, quoscumque fecerit in rem pupilli, sic tamen, si ex bona fide fecit. 9Hanc actionem perpetuam esse palam est, et heredi et in heredem dari ceterosque successores et ad quos ea res pertinet et in eos.
3 Ulpianus, On the Edict, Book XXXVI. But what if the guardian should spend more money upon his ward than the latter’s property amounts to? Let us see whether he can recover this. Labeo states that he can. This opinion, however, should only be adopted where it is to the interest of the ward for the guardianship to be administered in this manner. If it is not expedient that this should be done, it must be said that the guardian of the ward must be discharged, for guardianship should not be administered in such a way as to ruin the wards. Therefore, the judge who has cognizance of the counter-action must take into consideration the advantage to the ward, and whether the guardian has incurred the expense in accordance with the duties of his office. 1It should be considered whether the counter-action to enable the guardian to obtain a release from the ward will lie. No one has held that a guardian can bring the counter-action to enable him to be released from suit on guardianship; but only with reference to a release from liability for anything which he may have lost on account of the discharge of his trust. He can, however, recover the money, if he has used any of his own for this purpose, together with interest, but only at three per cent, or at the rate which is customary in that part of the country; or such interest as the money was loaned at if it was necessary to lend it in order to relieve the ward for some good reason; or for interest from the payment of which he has liberated the ward; or for such interest as the guardian is entitled to, where it was of great advantage for the ward to be released from his obligations. 2It is clear that, if the guardian is obliged to lend at interest certain money belonging to his ward, and has also a sum to pay for him, he cannot himself collect interest from the latter, nor will he be obliged to pay him interest. 3Wherefore, if he has appropriated for his own use any money belonging to his ward, and afterwards expends an equal sum upon his ward’s property, he ceases to have employed that money for his own benefit, and will not be obliged to pay interest on the same. If he has previously expended money upon property belonging to his ward, and afterwards appropriates to his own use any of the funds of the latter, he will not be held to have used for his ward’s benefit the amount equal to that due to himself, and will not be liable for interest for the said sum. 4Let us see whether a guardian can recover interest on money advanced during his guardianship, or even after its termination; or whether he can only recover it after default of payment. The better opinion is that he can recover the amount due to him, for his money should not be idle. 5It must, however, be held that if the sum to be recovered is to be taken from the estate of the ward, he cannot collect interest from the latter. 6But what if the guardian could not reimburse himself out of the property of his ward, because the money was deposited to be used for the purchase of land? If, however, the guardian has not applied to the Prætor for payment of the money, or permission to reserve for himself what was due to him out of the amount to be deposited, and if he has requested this, but did not succeed in obtaining it, it must be held that he will not lose his interest if he brings the counter-action. 7It is sufficient for the guardian to have properly and diligently administered the affairs of his trust, even though his transactions may have terminated adversely. 8In the counter-action on guardianship is included whatever has been expended for the benefit of the property of the ward, both before and after the guardianship; where it is proved that such expenditures were connected with the affairs of the trust during the continuance of the same, whether the party merely acted as guardian and was afterwards appointed one, or whether he was the curator of an unborn child. If, however, he did not transact the business as acting guardian, he can obtain whatever he has previously expended; for whatever expenses he may have incurred with reference to the property of the ward must be deducted from the amount of the judgment in an action on guardianship; provided, however, that such expenses were incurred in good faith. 9It is evident that this action is a perpetual one, and that it is granted both in favor of and against an heir, as well as for and against any other successors who are interested in the matter.
4 Iulianus libro vicesimo primo digestorum. A tutela remotus eo loco haberi debet, quo esset finita tutela, et sicut actiones patitur perinde ac si pupillus pubes factus esset, ita contrario iudicio, si quid ei aberit, persequi debebit: nihil enim prohibet suspectum tutorem esse, quamvis complura in rem pupilli impenderit, quae eum amittere non oportet.
4 Julianus, Digest, Book XXI. A guardian who has been removed from office should be considered to be in the same position as one whose guardianship is terminated, and hence he is liable to actions in the same manner as if the ward had reached puberty; so in the counter-action, if he has lost anything, he is entitled to bring suit to recover it, for there is nothing to prevent a suspected guardian from recovering what he has advanced, and which he should not lose, even though he may have expended too large a sum for the benefit of his ward.
5 Ulpianus libro primo responsorum. Heredem tutoris, si eam summam solverit, in quam obligati pupilli fuerunt, actionem contrariam adversus eos habere posse respondi.
5 Ulpianus, Opinions, Book I. I gave it as my opinion that the heir of a guardian, where he has paid a sum for which his wards were liable, is entitled to the counteraction against them.
6 Paulus libro quinto ad Plautium. Si tutor pro pupillo se obligavit, habet contrariam actionem et antequam solvat.
6 Paulus, On Plautius, Book V. If a guardian should bind himself for his ward, he is entitled to the counter-action, even before he has paid the debt.