Paulus, On the Edict, Book IX. Women are permitted to bring suit for their parents where proper cause is shown; for example, if their parents are prevented by disease, or by old age, and have no one to represent them.

The Same, On the Edict, Book IX. A person who is dumb and deaf is not forbidden to appoint an agent in any way in which he can do so; and persons of this description may also be appointed themselves; not, however, for the purpose of bringing suit, but for the transaction of business. 1When the question is asked if a certain individual can have an agent, it must be considered whether or not he is forbidden to appoint one, for this Edict is prohibitory. 2In popular actions, where a party acts as one of the people, he cannot be compelled to conduct the defence as an agent. 3Where anyone applies for the appointment of a curator for a party who is present, the latter must consent, unless he is of age; and if he is absent, the agent must be required to furnish security for ratification. 4The penalty to which an agent who does not defend his principal is liable is that the right of action shall be denied him. 5Where an agent brings suit, and a slave of the principal who is absent is present; Atilicinus says that security must be given to the slave, and not to the agent. 6Where a party is not compelled to defend someone who is absent, still, if he has furnished security that the judgment shall be complied with, on account of his having undertaken the defence, he can be forced to proceed; for if he does not, he who accepted the security will be deceived; as those who are not compelled to defend a case are required to do so after security has been furnished. Labeo thinks that indulgence should be granted where proper cause is shown, and if injury results to the plaintiff on account of lapse of time, the other party should be compelled to conduct the case; but if, in the meantime, some relationship by marriage has been destroyed, or enmity has arisen between the parties, or the property of the person who is absent has been taken possession of;

Paulus, On the Edict, Book IX. He should not be compelled. Sabinus, however, thinks that it is not one of the functions of the Prætor to compel one party to defend another, but that suit can be brought under the stipulation, because the action was not defended; and if the agent has good reason for refusing to act in the case, his sureties will not be liable, because an arbitrator would not be a good man if he forced a party who had a valid excuse to undertake a defence. If he did not give security, but reliance was placed upon his promise, the same rule should be observed. 1Parties who act on behalf of the public, and who at the same time, defend matters in which they are personally interested, are permitted to appoint an agent upon showing proper cause; and anyone who brings suit afterwards will be barred by an exception. 2Where notice of a new structure has been given to an agent, and he avails himself of the interdict which provides: “that no force is to be used against the party who builds”; Julianus holds that he occupies the place of a defender, and cannot be compelled to furnish security that his principal will ratify his acts; and if he does furnish security, (Julianus says), “I do not understand under what circumstances suit can be brought on the stipulation”.

Paulus, On the Edict, Book IX. It is evident that, in order to make up the two-thirds of the decurions, the person appointed may be included.

Paulus, On the Edict, Book IX. The votes of those who are under the same control shall be counted in like manner; for each party casts his vote as a decurion, and not as a person belonging to the household. The same rule is to be observed where votes are cast for the candidate for an office; unless some municipal law, or long established custom forbids it. 1If the decurions have decided that legal proceedings shall be instituted by the party selected by the duumvirs, he is considered to have been elected by the entire body, and therefore he can proceed; for it makes but little difference whether the body itself chose him, or someone who had authority to do so. But if they have decided that whenever a controversy arises, Titius should have authority to bring suit with reference to it; the resolution would be of no effect, because it cannot be held that the right to bring suit is conferred with reference to a matter which is not yet in controversy. At the present time, however, it is usual for all matters of this kind to be attended to by syndics, according to the custom of the various localities. 2Where an agent is appointed, can he afterwards be prevented from acting by a resolution of the decurions? Will he be barred by an exception? It is my opinion that it should be understood that he is only allowed to act so long as his permission lasts. 3Where the agent of a corporate body brings suit, he is also compelled to defend it when it is sued; but he is not required to give security for ratification. Sometimes, however, where doubt exists concerning the resolution which conferred authority upon him, I think that security for ratification should be furnished; therefore a syndic of this kind performs the functions of an ordinary agent, and a right of action for the execution of judgment is not conferred upon him by any edict, unless he was appointed with reference to a matter in which he was interested, and he can also accept a promise to pay. The power of a syndic can also be revoked for the same reason as that of an ordinary agent. The son of a family may be appointed a syndic.

Paulus, On the Edict, Book IX. Because the office of judge has the same force in bona fide actions, as interrogation has in a stipulation expressly made for the same purpose.

Paulus, On the Edict, Book IX. My debtor who owed me fifty aurei died. I undertook the care of his estate, and expended ten aurei. I then deposited in a chest a hundred aurei which were the proceeds of the sale of property belonging to the estate, and this sum was lost without my fault. The question arose whether, if an heir should appear, I could bring an action against him for the sum of fifty aurei which I had lent, or for the ten which I had expended? Julianus says that the question which we should consider depends upon whether I had good reason for putting aside the hundred aurei; for, if I should have paid myself and the other creditors of the estate, I ought to be responsible not only for the sixty aurei, but for the remaining forty as well. I might, however, retain the ten which I expended; that is to say, I should only pay over ninety. If, however, there was good reason for putting aside the entire sum of a hundred; as, for instance, if there was danger that land forming part of the estate would be forfeited for taxes; or that the penalty for money borrowed on bottomry would be increased; or that payment would be required on account of an award; I could collect from the heir not only the ten aurei which I had expended in connection with the business of the estate, but also the fifty which were due to me.

Paulus, On the Edict, Book IX. Pomponius states in the Twenty-sixth Book that, where business is transacted, the condition of the parties must be considered in the beginning; for, as he says: “Suppose I begin to transact the affairs of a minor who, in the meantime, arrives at the age of puberty? Or of a slave, or of the son of a family, and, in the meantime, he becomes free, or the father of a family?” I, myself, have stated that this is the better opinion, unless, in the beginning, I have only undertaken to attend to a single matter of business, and afterwards I have taken charge of another, with a different intention, at the time when the party either arrived at puberty, or became free, or the father of a family; for here several things, so to speak, were attended to, so that the action, as well as the judgment, will be arranged and regulated in accordance with the condition of the parties.

Paulus, On the Edict, Book IX. Proculus and Pegasus are of the opinion that a person who began to transact business while in slavery, must act in good faith; and therefore, the amount which he would have been able to make if some one else was managing his business, he must, as he did not exact it from himself, pay it over to his principal in an action based on business transacted; if his peculium amounted to so much that by retaining it, he could have made that sum. Neratius is of the same opinion.

Paulus, On the Edict, Book IX. Servius was of the opinion, as is stated by Alfenus in the Thirty-ninth Book of the Digest, that when three men were captured by the Lusitanians, and one of them was released on condition of his bringing a ransom for all three, if he did not return, the two others would be required to pay a ransom for himself also; and he having refused to return, and for this reason, the others having paid his ransom, as well as their own, Servius answered that it was just for the Prætor to grant them an action against him. 1Where one transacts business relating to an estate, he binds the estate to a certain extent to himself, and himself to the estate; and therefore, it makes no difference whether a minor heir to the estate exists, because the debt, together with the remaining burdens of the estate devolves on him. 2If, during the lifetime of Titius, I began to manage his business, I should not cease to do so when he dies. I am not obliged, however, to begin anything new, but it is necessary to finish what has been commenced, and to take care of it; as occurs when a partner dies, for so far as anything is done for the purpose of terminating business already begun is concerned, it makes no difference at what time it was finished, but it does at what time it was commenced. 3Ad Dig. 3,5,20,3BOHGE, Bd. 1 (1871), S. 253: Haftung aus der Ueberweisung eines Arbeiters zu einer nicht übernommenen Leistung.Lucius Titius attended to my business by your order; if he did not do so properly, you will be liable to me in an action based on business transacted, not only to force you to assign your rights of action against him, but also because you have acted imprudently in selecting him, and you must indemnify me for any loss incurred through his negligence.

Paulus, On the Edict, Book IX. If I should become surety for you in your presence, and in spite of you, neither an action on mandate, nor one on the ground of business transacted will lie. Some authorities hold that an equitable action should be granted, but I do not agree with them, and think that the opinion held by Pomponius is correct.

Paulus, On the Edict, Book IX. It is customary for an agent to be appointed at the risk of the guardian, by a decree of the Prætor, whenever the business of the guardianship is widely distributed, or where the rank, the age, or the health of the guardian demands it. Where, however, the ward is not yet able to speak for himself, and appoint an attorney, or where he is absent, then an agent must necessarily be appointed. 1Where the guardianship has been entrusted at the same time to the administration of two guardians, either by a parent, fellow-guardians, or magistrates, it should be understood that one of them will be allowed to act, because two cannot do so at the same time.

Paulus, On the Edict, Book IX. He is not considered to be free from bad faith who pays legacies without security having been furnished, where a controversy has already arisen with reference to the estate.

The Same, On the Edict, Book IX. Payment can properly be made to a steward if he has been dismissed without the knowledge of the debtor; for he is paid with the consent of his master, and if he who pays him is not aware that his master has withdrawn it, he will be released.

Paulus, On the Edict, Book IX. The word munus is defined in three different ways: first, as a donation, and hence are derived the terms to bestow, or send gifts; second, a position which, when anyone is released from it, affords exemption from military service and civil employment, whence is derived the term “immunity;” third, an office, whence are derived military occupations, and certain soldiers are designated munifices. For this reason persons who assume civil employments are called municipal officials.

Ad Dig. 50,17,114ROHGE, Bd. 7 (1873), S. 1: Contractsauslegung. Sprachgebrauch des Contracts und Erfüllungsortes.Paulus, On the Edict, Book IX. When words are ambiguous, their most probable or ordinary signification should be adopted.