De eo qui pro tutore prove curatore negotia gessit
(Concerning one who transacts business as acting guardian or curator.)
1 Ulpianus libro trigesimo sexto ad edictum. Protutelae actionem necessario praetor proposuit: nam quia plerumque incertum est, utrum quis tutor an vero quasi tutor pro tutore administraverit tutelam, idcirco in utrumque casum actionem scripsit, ut sive tutor est sive non sit qui gessit, actione tamen teneretur. solent enim magni errores intercedere, ut discerni facile non possit, utrum quis tutor fuerit et sic gesserit, an vero non fuerit, pro tutore tamen munere functus sit. 1Pro tutore autem negotia gerit, qui munere tutoris fungitur in re impuberis, sive se putet tutorem, sive scit non esse, finget tamen esse. 2Proinde et si servus quasi tutor egerit, divus Severus rescripsit dandum in dominum iudicium utile. 3Cum eo, qui pro tutore negotia gessit, etiam ante pubertatem agi posse nulla dubitatio est, quia tutor non est. 4Quare si quis finita tutela pro tutore negotia impuberis gessit, tenebitur. 5Sed et si prius pro tutore administraverit, deinde quasi tutor, aeque tenebitur ex eo quod pro tutore administravit, quamvis devolvatur hic gestus in tutelae actionem. 6Si quis quasi tutor negotia gesserit eius qui iam pubes est neque tutorem habere potest, protutelae actio cessat: simili modo et si eius, qui nondum natus est. nam ut pro tutore quis gerat, eam esse personam oportet, cuius aetas recipiat tutorem, id est impuberem esse oportet. sed erit negotiorum gestorum actio. 7Si curator impuberi a praetore datus negotia gesserit, an, quasi pro tutore gesserit, teneatur, quaeritur. et est verius cessare hanc actionem, quia officio curatoris functus est. si quis tamen, cum tutor non esset, compulsus a praetore vel a praeside, dum se putat tutorem, gesserit tutelam, videndum, an pro tutore teneatur. et magis est, ut, quamvis compulsus gesserit, teneri tamen debeat, quia animo tutoris gessit, cum tutor non esset. at iste curator non quasi tutor, sed quasi curator gessit. 8In protutelae iudicio usurae quoque veniunt. 9Sed utrum solummodo in id quod gessit tenebitur an vero in id etiam quod gerere debuit? et si quidem omnino non attigit tutelam, non tenebitur: neque enim attingere debuit qui tutor non fuit. quod si quaedam gessit, videndum, an etiam eorum quae non gessit teneatur: et hactenus tenebitur, si alius gesturus fuit. sed et si cognito, quod tutor non fuit, abstinuit se administratione, videamus, an teneatur, si necessarios pupilli non certioravit, ut ei tutorem peterent: quod verius est.
1 Ulpianus, On the Edict, Book XXXVI. The Prætor, through necessity, established an action to take the place of that of guardianship. For very often it is uncertain whether a party has administered the guardianship as an actual guardian, or merely as one occupying his place, and therefore he prescribed an action available in either instance; so that whether the guardian was an actual one who attended to the business, or whether he was not, he would still be liable to the action. For great uncertainty frequently arises, so that it cannot be easily ascertained whether he who administered the trust was really a guardian, or whether he was not, but merely performed the duties of the office in that capacity. 1A man transacts business as a guardian who discharges the duties of one with reference to the affairs of minors, either when he thinks himself to be a guardian, or knowing that he is not, nevertheless pretends to be one. 2Hence, if a slave acts in the capacity of guardian, the Divine Severus stated in a Rescript that an equitable action should be granted against his master on account of the acts of the slave. 3There is no doubt that an action can be brought against a party who transacted the business of a minor in the capacity of guardian, even before the latter arrives at puberty, for the reason that he is not really a guardian. 4Wherefore, if anyone acting as a guardian transacts the business of a minor after the termination of his guardianship, he will be liable. 5If anyone should administer a guardianship as a pretended guardian before his appointment, and afterwards as a real guardian, he will also be liable for acts performed while he was administering the trust without legal authority, although said acts will be included in an action on guardianship. 6Where anyone performs the duties of a guardian with reference to the affairs of a minor who has already reached the age of puberty and who therefore cannot have a guardian, an action of this kind will not lie. The same rule applies to the case of an unborn child, for where anyone acts as a guardian, it is necessary for the individual whom he represents to be of an age to have one, that is to say under the age of puberty. However, an action on the ground of voluntary agency will lie in this instance. 7Where a curator appointed for a minor by the Prætor transacts the business, the question arises whether he will be liable as one occupying the place of a guardian. The better opinion is that this action will not lie, because the party performed the duties of a curator. However, where there is no guardian, and someone is compelled, either by the Prætor or the Governor to act as such, and, believing himself to be a guardian, administers the guardianship, it should be ascertained whether he is responsible for his acts in the capacity of guardian. The better opinion is that he should still be liable, even though he acted under compulsion, for the reason that he transacted the business with the intention of a guardian, even though he was not one in reality. The above-mentioned curator, however, did not transact the business as a guardian but as a curator. 8In the action against a person who has acted as guardian interest is also included. 9Should the party who has acted in the capacity of guardian only be held liable for the business which he transacted, or also for that which he should have attended to? And, indeed, he will not be liable for anything which did not concern the guardianship, nor for any matter which should not have had connection with it, while he acted as guardian. Where he transacted certain business, it should be considered whether he can be held liable for what he did not attend to, and he will be responsible to the extent that another would have been if he had transacted it. But if, knowing that he was not a guardian, he refrained from administering the trust, let us see whether he can be held liable, if he did not notify the near relatives of the ward to have a guardian appointed for the latter. The better opinion is that he will be liable.
2 Celsus libro vicesimo quinto digestorum. Si is, qui pro tutore negotia gerebat, cum tutor non esset, rem pupilli vendidit nec ea usucapta est, petet eam pupillus, quamquam ei cautum est: non enim eadem huius quae tutoris est rerum pupilli administratio.
2 Celsus, Digest, Book XXV. Where anyone transacts business as a guardian while he does not occupy the office, and sells property of the ward which is not subsequently acquired by usucaption; the latter can bring suit for said property even though security may have been given to him, for the reason that the administration of the affairs of a ward by a person acting as guardian is not the same as that of a real guardian.
3 Iavolenus libro quinto epistularum. Quaero, an is qui, cum tutor testamento datus esset et id ipsum ignoraret, pro tutore negotia pupilli gesserit, quasi tutor an quasi pro tutore negotia gesserit, teneatur. respondit: non puto teneri quasi tutorem, quia scire quoque se tutorem esse debet, ut eo affectu negotia gerat, quo tutor gerere debeat.
3 Javolenus, Epistles, Book V. I ask whether he who has been appointed a guardian by will, but is ignorant of the fact, can be held liable for attending to the business of the ward as an actual guardian, or for transacting said business as one acting in the capacity of a guardian. I answered that I do not think that he can be held liable as an actual guardian, because he must know that he is the guardian, in order to discharge the duties of the office with the same spirit with which a guardian should act.
4 Pomponius libro sexto decimo ad Quintum Mucium. Qui pro tutore negotia gerit, eandem fidem et diligentiam praestat, quam tutor praestaret.
4 Pomponius, On Quintus Mucius, Book XVI. He who transacts business as an acting guardian should display the same good faith and diligence as a real guardian.
5 Ulpianus libro decimo ad edictum. Ei qui pro tutore negotia gessit contrarium iudicium competit.
5 Ulpianus, On the Edict, Book XXVIII. He who has transacted business while acting as guardian is entitled to the counter-action.