Paulus, Questions, Book IV. There is nothing new in the interpretation of recent laws by former ones.

Paulus, Questions, Book IV. Where a man who is free, but serves me in good faith as a slave, has borrowed money and employed it for my benefit, let us consider by what action I must restore what he expended in my behalf; as he transacted the business for me not as a friend, but as his owner. An action based on the ground of business transacted should be granted, and this ceases to be proper as soon as his creditor is paid.

Ad Dig. 13,4,10ROHGE, Bd. 24 (1879), Nr. 16, S. 56: Anspruch auf Konventionalstrafe wegen Verspätung der Hauptleistung ungeachtet vorbehaltloser Annahme der Letzteren.Paulus, Questions, Book IV. If, after default of payment at Capua, the creditor should wish to bring an arbitrarian action, and should first take a surety on account of said action, let us consider whether any amount that may be added by the decision of the court to the original debt will not be due and be included in the obligation, so that now if the principal should be paid, or suit is brought at Capua, the jurisdiction of the court is terminated; unless someone should say, for example, that the judge ought to render a decision for one hundred and twenty aurei, and a hundred of the entire amount is paid, this should be considered to be paid on the total, that is out of the principal and the penalty; so that the plaintiff would have a right of action for the amount still remaining due on the original debt, as well as the penalty which has accrued for default of payment of that amount. I do not think however that this can be accepted as sound; and the more so because the creditor is held to have remitted the penalty when he received the money.

Paulus, Questions, Book IV. The result of this is that if his own peculium is left to Stichus, and he brings suit under the will, he will not be compelled to surrender what his sub-slave owes to the testator, unless the sub-slave has a peculium.

Paulus, Questions, Book IV. A question is asked with reference to an actual occurrence, namely: where a party who was administering a guardianship as a freeman was pronounced to be a slave, whether, if his master was sued by the ward whose claim has been stated by rescript to be preferable to those of other creditors of the slave, what is owing to the master should be deducted from the peculium. And if you think it can be deducted, whether it makes any difference if he became indebted to the master while he was still enjoying his freedom, or afterwards; and will the action on the peculium lie in favor of a boy who has not reached puberty? I answered that no privileged claim could take preference over that of the father or master, if he was sued on the peculium on account of the son or the slave. It is evident that in the case of other creditors account should be taken of privileged claims, for what if a son has received a dowry or has managed a guardianship? This has been very properly stated in a rescript, with reference to a slave who was acting as guardian, and, for the reason that the position of the more diligent creditor is usually better than that of the others, so far as they are concerned, the action will be barred. Clearly if he has loaned money out of property belonging to the ward or has deposited money in a chest, an action for the recovery of the same will be granted him, as well as an equitable action against the debtor; that is to say, if they have used up the money, for he had no power to alienate it. This also should be held in the case of any guardian. Nor do I think it makes any difference whether, when he became indebted to the master, he was in possession of his freedom, or whether this happened subsequently; for if I make a loan to the slave of Titius, and then become his master, I can deduct what I have previously lent him, if suit is brought against me on the peculium. What course must then be pursued? Since proceedings cannot be instituted on the peculium, an equitable action founded on that on guardianship, should be granted against the master, so that what this party had as his own property may be understood to be his peculium. 1If a dowry is given to a son under paternal control, or he has administered a guardianship, an account should be taken of the privileged claims in an action on the peculium, and, in the meantime, continuance having been granted in the action of other creditors, or security furnished, if those who have no privilege institute proceedings first, what they have received shall be restored, if suit on the privileged claim is afterwards brought against the father.

Paulus, Questions, Book IV. A son under paternal control purchased a toga; and afterwards, having died, his father being ignorant of the fact, and supposing it to be his, used it at his funeral. Neratius states in the Second Book of Opinions that this is held to be employment of property in the affairs of the father, but that, in the action on the peculium, what does not exist should be computed only in one instance, that is where this is occasioned by the malicious fraud of him against whom suit is brought. If, however, the father was obliged to purchase a toga for his son, it was employed in the affairs of his father, not now when it was used at the funeral, but at the time he purchased it, for the funeral of the son is a debt of the father. Neratius, also, who thought that the father was liable on the ground of property employed in his business, explains that this transaction (that is to say the burial and the funeral of the son) constitute a debt of the father and not of the son. He, therefore, having become a debtor to the peculium, although the property is not in existence, can also be sued on the peculium; and in this action is also included what has been employed in his affairs; which addition is, however necessary, after a year has elapsed from the death of the son.

Paulus, Questions, Book IV. If you defend Titius in accordance with a mandate which has previously been given you, even if he were dead and you were ignorant of the fact; I think that you will be entitled to an action on mandate against the heir of Titius, because a mandate is terminated by the death of the mandator, but the action on mandate is not. If, however, you undertook the defence of the case without any mandate, you began, as it were, to transact the business of the deceased, and you will be entitled to an action against him on the ground of voluntary agency, just as if you had released him from liability. It can also be said that his heir will be liable to the same action. 1Lucius Titius gave a mandator to his creditor, the debtor having afterwards died and the majority of the creditors having consented, it was decreed by the Prætor that they should receive a portion of their claims from the heir, the creditor in whose behalf the mandator had been given, being absent at the time. I ask if this mandator were sued would he be entitled to the same exception as the heir of the debtor? I answered that, if he himself had been present before the Prætor, and had given his consent, the agreement would be held to have had proper foundation, and that this exception should be granted to both the surety and the mandator. But, as in the case stated he was absent, it is unjust to deprive him of his right of choice, since, if he had been present, he could have demanded his pledge or privilege, and refused to accept the decree of the Prætor. For no one can say that, if the creditor were barred, the heir would be benefited, but the mandator or the surety would be, as he would be compelled to make good to them the same portion in an action on mandate. But if the creditor had received his share of the indebtedness from the heir, would there be any doubt that he would be permitted to bring an action against the surety for the remainder? By the mere fact of bringing suit against the heir he would be held to have consented to the decree.

Ad Dig. 17,2,77ROHGE, Bd. 16 (1875), Nr. 109, S. 427, 430: Vervollständigung absichtlich unvollständiger Vereinbarung. Arbitrium boni viri. Taxation des Geschäftsantheils eines ausgetretenen Gesellschafters.Paulus, Questions, Book IV. For instance, when the intention of a lease is involved, and the decision of the lessor is required.

Ad Dig. 17,2,79ROHGE, Bd. 3 (1872), S. 173: Unterschied zwischen Schiedsspruch und arbitrium boni viri bezüglich der Anfechtbarkeit.ROHGE, Bd. 4 (1872), S. 429: Unterschied zwischen Schiedsspruch und arbitrium boni viri bezüglich der Anfechtbarkeit.Paulus, Questions, Book IV. Wherefore, if the award of Nerva is so improper that its manifest injustice is apparent, it can be corrected by a judgment on the ground of good faith.

Ad Dig. 36,1,61Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 289, Note 1.Paulus, Questions, Book IV. Ad Dig. 36,1,61 pr.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 249, Note 4.A debtor appointed his creditor, to whom he had given property in pledge, and his heir charged him to transfer his estate to his daughter, that is the daughter of the testator. The creditor, having refused to accept the estate because he suspected it of being insolvent, was compelled to do so by order of the Prætor, and transferred it. As he could not find a purchaser for the pledge, he asked that permission be granted him to retain it by the right of ownership. I gave it as my opinion that the obligation was extinguished by his acceptance of the estate. However, let us see whether the pledge was not released as the natural obligation was disposed of. And let us also consider what the result will be, and whether the creditor who brings an action possesses the property, or whether the heir is, or is not, in possession of the same. If the creditor is in possession of it, suit cannot be brought against him by the beneficiary of the trust, nor can he be sued in an action on pledge, as the right to proceed belongs to the estate; nor can an action under the trust be properly brought on the ground that the heir has transferred less property than he should have done, which would be the case even if there had been no pledge: for the creditor, in this capacity, has possession of the property. And even though the beneficiary of the trust may hold the property, he will be liable to the Servian Action, for it is certain that the money has not been paid; just as we hold when an action is lost on account of an exception. Therefore, not only the property can be retained but suit can be brought on the ground of the pledge, and what has already been paid cannot be recovered. Hence the natural obligation based on the pledge continues to exist. If matters remain in their original condition, I do not think that the creditor could be compelled to accept the estate, unless security was first given to indemnify him, or his claim was satisfied. For where an appointed heir proceeds against the beneficiary of the trust for his own advantage, for example, where he has received a legacy in case he should not become the heir, it has been decided that he ought not to be compelled to enter upon the estate, unless the legacy is paid; for indeed it may be said that the heir cannot be compelled to accept the estate contrary to the will of the deceased, who, by making a bequest to him provided he did not enter upon it, left the acceptance of the estate to his own choice. Where, however, the testator bequeathed his heir one of two things, we give him one or the other of them. 1A woman, who gave a dowry, agreed with her husband that, if she died during the marriage, half of her dowry should be returned to her mother, but no stipulation to that effect was entered into by her mother. The woman afterwards, at the time of her death, appointed her mother and her husband her heirs, and charged her mother to transfer her estate to Titius. The court, in rendering a decision with reference to the division of the estate, adjudged half of the dowry to the mother in compliance with the terms of the agreement. The question arose whether this portion of the dowry should be paid in accordance with the provisions of the trust. I think that it should not be paid, because the mother did not receive it as an heir, but as the mother under a contract, and she was entitled to it, not on account of the estate, but through an error in the construction of the agreement.

Paulus, Questions, Book IV. Ad Dig. 46,1,71 pr.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 295, Note 9.Uranius Antoninus became mandator for Julius Pollio and Julius Rufus, for money which the latter had borrowed from Aurelius Palma, they being joint-debtors of the latter. The property of Julius escheated to the Treasury, and at the same time, the Treasury became the successor of the creditor. The mandator alleged that he was relieved of liability by the law of merger, because the Treasury had succeeded the creditor, as well as the debtor. And, indeed, if there was but one debtor, I do not doubt that the surety, as well as the mandator, would be released; for even if an action should be brought against the principal debtor, the mandator would not be released, still, when the creditor succeeded the debtor, the obligation was disposed of, as it were, by the right of payment, and the mandator was also released, for the-additional reason that no one can be mandator for the same person to the same person. But when there are two joint-promisors, and the creditor of one of them becomes his heir, there is good reason to doubt whether the other is not also released; just as if the money had been paid, or the person having been removed, whether the obligation is merged. I think that, by the acceptance of the estate, the principal debtor is released by the merger of the obligation, and that, on this account, his sureties are also released, because they cannot be liable to a person for himself, and, as they cannot begin to be in that position, so they cannot remain in it. Therefore, the other joint-debtor for the same sum of money is not released, and on this account, neither his surety nor his mandator can be relieved of liability. It is evident that, because he who had judgment rendered against him in the action on mandate can even select his creditor, he will be entitled to an exception on the ground of fraud, if suit is brought against him. The creditor can proceed against the other debtor, either for the whole amount of the claim, if no partnership existed, or for a portion of it if the debtors were partners. If, however, the creditor should become the heir of the surety, or the surety the heir of the creditor, I think that it is settled that the principal debtor will not be released by the merger of the obligation. 1If we suppose that one of certain joint-debtors agreed that suit should not be brought against him, and the mandator afterwards made payment, he can also bring an action on mandate against the person with whom he made the agreement, for the agreement of the creditor does not deprive him of his right of action against a third party. 2It is established that a mandator is liable even if he directs a creditor to lend money, who is about to lend it at interest.