Quod falso tutore auctore gestum esse dicatur
(Concerning business transacted under the authority of a false guardian.)
1 Ulpianus libro duodecimo ad edictum. Huius edicti aequitas non est ambigua, ne contrahentes decipiantur, dum falsus tutor adhibetur. 1Verba autem edicti haec sunt. 2‘Quod eo auctore’ inquit ‘qui tutor non fuerit’. verbis edicti multa desunt: quid enim si fuit tutor, is tamen fuit qui auctoritatem accommodare non potuit? puta furiosus vel ad aliam regionem datus. 3Sed Pomponius libro trigensimo scribit interdum quamvis a non tutore gestum est, non pertinere ad hanc partem edicti: quid enim si duo tutores, alter falsus, alter verus auctoritatem accommodaverint, nonne valebit quod gestum est? 4Item hoc edictum licet singulariter scriptum sit, si tamen plures intervenerint, qui tutores non erant, tamen locum habere debere Pomponius libro trigesimo scribit. 5Idem Pomponius scribit, etiamsi pro tutore negotia gerens auctoritatem accommodaverit, nihilo minus hoc edictum locum habere, nisi forte praetor decrevit ratum se habiturum id, quod his auctoribus gestum est: tunc enim valebit per praetoris tuitionem, non ipso iure. 6Ait praetor: ‘si id actor ignoravit, dabo in integrum restitutionem’. scienti non subvenit, merito, quoniam ipse se decepit.
1 Ulpianus, On the Edict, Book XII. The justice of this Edict is in no respect ambiguous, for it was framed to prevent the contracting parties from being deceived through the intervention of a false guardian. 1The following are the terms of the edict: “What is done by the authority (the Prætor says) of one who was not a guardian”. 2Many things are lacking in the terms of the Edict. For what if the party who was guardian should have no right to exert his authority, for example, if he should be insane, or was appointed for some other province. 3However, Pomponius states in the Thirtieth Book that sometimes, although the business has been transacted under the authority of someone who was not a guardian, this part of the Edict will not be applicable. For what if there are two guardians, one of whom is false, and the other genuine, and they should authorize an act, would the transaction be valid? 4Pomponius says in the Thirtieth Book that, even though this Edict does not specifically mention more than one false guardian, it, nevertheless, applies to the acts of several. 5Pomponius also says that, even though a ward transacts business under the authority of a person acting as guardian, this Edict will still apply, unless the Prætor shall have decreed that he will ratify what has been done under such authority, for then the act will be valid, on account of the support of the Prætor, and not by operation of law. 6The Prætor says: “If a ward should be ignorant that his guardian is not genuine, I will grant him complete restitution”. He does not grant relief to a ward who was aware of the fact, which is reasonable, because he voluntarily deceives himself.
2 Paulus libro duodecimo ad edictum. ‘Si id’, inquit, ‘actor ignoraverit’. Labeo: et si dictum sit ei et bona fide non crediderit.
2 Paulus, On the Edict, Book XII. “If the ward should be ignorant that his guardian is not genuine”, Labeo holds that this applies where the ward has been informed of the fact, and in good faith refused to believe it.
3 Ulpianus libro duodecimo ad edictum. Plane si is sit qui auxilio non indiget, scientia ei non nocet, ut puta si pupillus cum pupillo egit: nam cum nihil actum sit, scientia non nocet.
3 Ulpianus, On the Edict, Book XII. It is evident that such knowledge does not prejudice a party who is not in need of assistance; as, for example, where one ward transacts business with another, for as the act is void, his knowledge does not prejudice him.
4 Paulus libro duodecimo ad edictum. Minori viginti quinque annis succurretur, etiamsi scierit.
4 Paulus, On the Edict, Book XII. Relief is afforded to a minor under twenty-five years of age who had knowledge.
5 Ulpianus libro duodecimo ad edictum. Interdum tamen etsi scientia noceat, tamen restitutio facienda erit, si a praetore compulsus est ad iudicium accipiendum.
5 Ulpianus, On the Edict, Book XII. Sometimes, however, although knowledge may cause prejudice, restitution should be granted where a party was compelled to join issue by order of the Prætor.
6 Paulus libro duodecimo ad edictum. Pupilli scientia computanda non est, tutoris eius computanda est: utique etsi pupillo cautum sit, melius dicitur rem suam restitui pupillo quam incertum cautionis eventum eum spectare: quod et Iulianus, si alias circumventus sit pupillus, respondit.
6 Paulus, On the Edict, Book XII. In any transaction, the knowledge of a ward should not be taken into account, but only that of his guardian should be considered. Therefore, even if security has been furnished the ward, it is held to be better for the property of the latter to be restored to him, than for him to depend upon the uncertain result of the security. This Julianus gave as his opinion in any case where a ward has been defrauded.
7 Ulpianus libro duodecimo ad edictum. Novissime praetor ait: ‘in eum qui, cum tutor non esset, dolo malo auctor factus esse dicetur, iudicium dabo, ut quanti ea res erit, tantam pecuniam condemnetur’. 1Non semper tutor convenitur nec sufficit, si sciens aucto fuit, verum ita demum, si dolo malo auctor fuit. quid si compulsus aut metu, ne compelleretur, auctoritatem accommodaverit, nonne debebit esse excusatus? 2Quod ait praetor ‘quanti ea res erit’, magis puto non poenam, sed veritatem his verbis contineri. 3Pomponius libro trigesimo recte scribit etiam sumptuum in hoc iudicio rationem haberi, quos facturus est actor restitutorio agendo. 4Si plures sint qui auctores fuerunt, perceptione ab uno facta et ceteri liberantur, non electione:
7 Ulpianus, On the Edict, Book XII. Finally, the Prætor says: “I will grant an action against a party who, not being a guardian, is said to have fraudulently authorized the act of a ward; and judgment shall be rendered against him for the value of the property in question”. 1A guardian cannot always be sued, nor is it sufficient for him to have knowingly authorized a transaction, but he also must have acted in bad faith. What would be the result if he were forced to grant his authority, or was induced to do so through fear: ought he not to be excused under such circumstances? 2Where the Prætor says: “The value of the property in question”. I do not think that the penalty, but merely the true amount lost is referred to. 3Pomponius very properly states in the Thirtieth Book that the account of the expenses which the plaintiff has been forced to incur by bringing this action should also be included in the judgment. 4Where there are several false guardians, and restitution is made by one of them, the others will be released, but this is not accomplished by the mere selection of one by the plaintiff.
8 Paulus libro duodecimo ad edictum. et ideo si nihil aut non totum servatum sit, in reliquos non denegandam in id quod deest Sabinus scribit.
8 Paulus, On the Edict, Book XII. Hence Sabinus says that where the plaintiff did not recover the entire amount from one of them, he should not be refused recourse against the others for the deficiency.
9 Ulpianus libro duodecimo ad edictum. Huius actionis exemplo Pomponius libro trigesimo primo scribit dandam actionem adversus eum, qui dolo malo adhibuit, ut alius auctoraretur inscius. 1Has in factum actiones heredibus quidem competere ceterisque successoribus, in eos vero non reddi Labeo scribit nec in ipsum post annum, quoniam et factum puniunt et in dolum concipiuntur: et adversus eas personas, quae alieno iuri subiectae sunt, noxales erunt.
9 Ulpianus, On the Edict, Book XII. With reference to this action, Pomponius states in the Thirty-first Book that it can be granted against anyone who acts in bad faith, in order to induce another, who is ignorant of the fact, to authorize a transaction by his ward. 1Labeo says that actions of this kind in factum can be brought by heirs and their successors, but that they will not lie against them, nor can they be brought after the expiration of a year, since they punish an act, and are based upon fraud; and that they become noxal actions when instituted against parties who are subjected to the authority of others.
10 Gaius libro quarto ad edictum provinciale. Si falso tutore auctore actum sit et interea dies actionis exierit aut res usucapta sit, omnia incommoda perinde sustinere debet, ac si illo tempore vero tutore auctore egisset.
10 Gaius, On the Provincial Edict, Book IV. Where an action is brought against a ward on account of a false guardian, and, in the meantime, the term prescribed by law has elapsed, or the property has been acquired by usucaption, the guilty party must sustain all the inconvenience which may arise, just as if he were a genuine guardian, and suit had been brought against him within the prescribed time.
11 Ulpianus libro trigesimo quinto ad edictum. Falsus tutor, qui in contrahendo auctor minori duodecim vel quattuordecim annis fuerit, tenebitur in factum actione propter dolum malum. 1Cuiuscumque condicionis fuerit vel sui iuris vel alieni, qui dolo malo auctoritatem accommodavit, tenebitur hoc edicto. 2Sed et si quis filiae familias auctor factus sit ad contrahendum, tenetur. idemque iuris est, si ancillae quis tutore auctore credidisset: nam omnibus istis modis propter tutorem decipitur is qui contraxit, quia aliter cum impubere contracturus non fuit, quam si tutoris auctoritas intercessisset. 3Iulianus libro vicesimo primo digestorum tractat, in patrem debeat dari haec actio, qui filiam minorem duodecim annis nuptum dedit. et magis probat patri ignoscendum esse, qui filiam suam maturius in familiam sponsi perducere voluit: affectu enim propensiore magis quam dolo malo id videri fecisse. 4Quod si intra duodecim annos haec decesserit, cum haberet dotem, putat Iulianus, si dolo malo conversatus sit is ad quem dos pertinet, posse maritum doli mali exceptione condicentem summovere in casibus, in quibus dotem vel in totum vel in partem, si constabat matrimonium, fuerat lucraturus.
11 Ulpianus, On the Edict, Book XXXV. A false guardian who grants authority to a minor of twelve or fourteen years of age to make a contract shall be liable to an action in factum on the ground of fraud, no matter what his condition may be, whether he is his own master, or under the control of another. 1He who fraudulently grants authority to a minor will be liable under this Edict. 2Moreover, anyone who authorizes a daughter under paternal control to enter into a contract is liable. The same rule of law applies where anyone acting as guardian authorizes a female slave to borrow money; for in all these instances the contracting party is deceived by the agency of the guardian, for he would not have contracted with the minor without the intervention of the authority of the guardian. 3Julianus in the Twenty-first Book of the Digest discusses the point whether this action should be granted against a father who gave his daughter in marriage, while she was under twelve years of age. The weight of authority is that a father is to be excused who desired to introduce his daughter too soon into the family of her husband, for in doing so he is held to have acted rather from an excess of affection, than through malice. 4Julianus thinks, however, that if the daughter should die before reaching the age of twelve years, after having received her dowry, and he who was entitled to it had acted in bad faith, the husband can be barred by an exception on the ground of fraud when he sues for the dowry, in cases where he would have been benefited to the extent of all, or a part of it, if the marriage had been valid.
12 Idem libro primo responsorum. Ex eo, quod interrogatus tutorem se esse respondit, nulla eum actione teneri: si tamen, cum tutor non esset, responso suo in aliquam captionem adulescentem induxit, utilem actionem adversus eum dandam.
12 The Same, Opinions, Book XII. Where a party, having been interrogated in court, answers that he is a guardian, he will not be liable to any action for making this statement. Where, however, he was not a guardian, and the minor was in any way defrauded through his answer, an equitable action should be granted against him.