Scævola, Opinions, Book I. A father appointed Sempronius, one of his creditors, the guardian of his son; and he, having administered the guardianship appointed his brother his heir, who himself died, and left the debt owed by his father in trust to Titius, and the rights of action were assigned to him by the heirs. The action of guardianship as well as that for money loaned being both derived from the estate of Sempronius, I ask whether the right of action on mandate is only granted him if he defends the heirs by whom the rights of action were assigned to him? I answered that he should defend them.

Scævola, Opinions, Book I. A guardian, being pressed by creditors, made a bona fide sale of the property of his ward, and his mother protested against the sale to the purchasers. I ask, since the property was sold on the demand of the creditors, and nothing could reasonably be alleged concerning the corruption of the guardian, whether the ward was entitled to complete restitution? I answered that inquiry must be made in order to determine this; and therefore, if there was just cause for restitution, it ought not to be refused because the guardian was not guilty of any offence. 1A guardian of minors sold certain lands which he held in common with his wards, and of which he had charge. I ask if the minors are entitled to complete restitution by the decree of the Prætor, or whether the sale should be rescinded only so far as they had an interest in the common property? I answered that it should be rescinded to that extent; unless where the purchaser desired to have the entire contract rescinded, because he was unwilling to purchase only a share in the land. I also ask whether the purchaser should receive from the wards, Seius and Sempronius, the purchase-money, with interest; or whether he should receive it from the heir of the curator? I answered that the heir of the curator would be liable, but that actions would be granted against Seius and Sempronius for the shares which they owned in the land; at all events, if the money received had come into their hands to that amount.

Ad Dig. 4,8,43BOHGE, Bd. 2 (1871), S. 156: Gegenstand des Schiedsvertrages können auch künftige Rechtsverhältnisse sein. Bezeichnung der Person der Schiedsrichter.ROHGE, Bd. 3 (1872), S. 55: Gegenstand des Schiedsvertrages können auch künftige Rechtsverhältnisse sein. Bezeichnung der Person der Schiedsrichter.ROHGE, Bd. 7 (1873), S. 331: Gegenstand des Schiedsvertrages können auch künftige Rechtsverhältnisse sein. Bezeichnung der Person der Schiedsrichter.Scævola, Opinions, Book I. Lucius Titius and Mævius Sempronius entered into an agreement to submit all their disputes to arbitration; but, through mistake, some matters were not included by Lucius Titius in his application, nor did the arbiter make any award with reference to them. The question arose whether those things which were omitted could be made the subject of a new application? The answer was that this could be done, and that no penalty was incurred in consequence of the arbitration; but if the party had committed the act maliciously, although indeed, he could makes a new application, he would be liable to the penalty.

Scævola, Opinions, Book I. A man who bought a house from the guardian of a minor sent a carpenter to repair it, and he found some money therein. The question arises to whom does that money belong? I answered that if it was not money concealed, but some which had been lost, or which the party to whom it belonged had by mistake failed to remove, it should, nevertheless, continue to be his to whom it originally belonged.

Scævola, Opinions, Book I. A testator bequeathed the right of habitation and the right to use a wareroom in the same house to Olympicus, during his lifetime; and adjoining said house there was a garden and an upper room which was not bequeathed to Olympicus, but access had always existed to the garden and the room through the house in which the right of habitation was bequeathed. The question arose whether Olympicus was obliged to permit this access? I answered that this was not a servitude, but that the heir could go through the house to those portions of the same which have been referred to, provided he did not inconvenience the legatee. 1Lucius Titius, having opened the wall of his house, made a doorway leading to ground owned by the public, without exceeding what was prescribed for the drip from the roof and the projection of the gutters; I ask, since he did not obstruct the lights of Publius Mævius, his neighbor, or what space he required for his passage, or did not interfere with the drip of rain-water from his neighbor’s house, whether his said neighbor, Publius Mævius, would have any right to prevent him from doing these things? I answered that, according to what had been stated, he would have none.

Scævola, Opinions, Book I. Where a person was appointed heir to a share of an estate with reference to which an action had been brought against the heirs because they did not avenge the death of the testator, he gained his case, and the co-heir then brought suit to recover his share from the other heir, but refused to pay his allotment of the expense incurred in the defence of the other suit. The question arose whether he would be barred by an exception on the ground of fraud? I answered that if greater expenses had been incurred by reason of the defence which he had made for the benefit of the said co-heir himself, this expense must be taken into consideration; but if the other party did not plead an exception on the ground of fraud, he could bring suit for the recovery of part of the expenses. 1A man who died intestate divided all his land and other property among his children by means of codicils, in such a way that he left a great deal more to his son than to his daughter. The question arose whether the sister had a right to bring her dowry into the common fund for the benefit of the brother? I answered that, according to the statement of facts, if the testator left nothing undivided, the better opinion was that the right to bring the dowry into the common fund was removed by the wish of the testator. 2A testator granted freedom to a slave, who was fifteen years of age, when he should reach the age of thirty; and also indicated that he desired that there should be given him from the day of his death, as long as the slave lived, ten denarii for his food, and twenty-five denarii for his clothes. Stichus died before the day when he was to become free arrived, and the question arose whether the legacy relating to food and clothing was valid; and whether, if it was not valid, the heir who had paid it could recover it from his co-heir with whom the slave had lived? I answered that if the money had not been due, but if what had been given had been expended for food, it could not be recovered. 3A son who, after the death of his father, contracted debts due to the Government, cannot charge his brother with said debts in proportion to his share in the estate of his father, if the brothers are not partners in all their property; even though they held the estate of their father in common, and their father had discharged the duty of a magistrate where he resided in behalf of his other son. 4A testator appointed his two sons his heirs, and before distribution bequeathed certain slaves to each of them; among said slaves a certain Stephanus was left to one of the sons together with his peculium. The said slave, having been manumitted during the lifetime of the testator, died, and afterwards the father died. The question then arose whether what Stephanus had in his peculium before he was manumitted belonged to both sons, or only to the one to whom he had been previously bequeathed together with his peculium? I answered that, according to the statement of the case, it belonged to both. 5A father who divided his property between his sons and confirmed the division by his will, provided that any debt which either of them had contracted or should contract, he alone should be liable for the same. One of his sons having afterwards borrowed money, the father appeared, and with his consent the land which had been transferred to the said son was pledged for the debt, and after the death of the father the same son who was in possession of the land paid the interest, I ask whether, if the creditor should sell the land which was pledged, anything should be paid to this son by a co-heir if an action for partition of the estate should be brought? I answered that, in accordance with the facts stated, he would not be required to pay anything.

Scævola, Opinions, Book I. An action for the partition of common property may be properly brought either where neither party is in possession, or where one of the joint-owners is not in possession of the land.

Scævola, Opinions, Book I. A certain man wrote a letter to his creditor as follows: “The ten aurei which Lucius Titius received as a loan from your chest are in my possession, and at your disposal, with the exception of the amount of interest.” The answer was that, according to the facts stated, the party was liable to an action based on money promised.

Scævola, Opinions, Book I. A father allowed his son to borrow money, and directed the creditor by letter to lend it to him, and the son became an heir to his father for a very small portion of the estate. I answered that the creditor could decide whether he would prefer to sue the son, to whom he had lent the money, for the entire amount, or the heirs, each in proportion to the share to which he had succeeded. Judgment was rendered against the son to the extent of his capacity to pay.

Scævola, Opinions, Book I. A testator bequeathed to one of his heirs, in addition to his share, certain lands already equipped, together with the slaves; these slaves were the debtors of the master. The question arose whether an action on the peculium would lie against him in favor of the other heir? The answer was that it would not.

Scævola, Opinions, Book I. A father promised a dowry for his daughter and agreed that he would support her; and, as he did not keep his promise, the daughter borrowed money from her husband, and died during marriage. I gave it as my opinion that, if what had been lent had been expended for something without which she could not support herself, or could not maintain her father’s slaves, an equitable action should be granted on the ground of property employed in the business of the father. 1The slave of a party who was absent on public business lent money to the slaves of a ward, the guardian signing the stipulation, which stated that the latter was responsible for the contract. The question arose whether an action would lie against the ward? I answered that, if the property was given for the business of the ward it was employed for that purpose; and although, in order that the contract with reference to the slaves might be the better confirmed, the guardian had made the promise, it should, nevertheless, be said that an action for property employed in the business of another might be brought against the ward.

Scævola, Opinions, Book I. Seia bought some slaves, and having borrowed money with her husband as surety, paid the vendor. Her husband afterwards died insolvent, and, for the purpose of defrauding his creditor, stated in his will that he owed the entire amount; and the question arose whether the woman could be held to have bound herself in behalf of another? I answered, that in accordance with the facts stated, she had not bound herself. 1Ad Dig. 16,1,28,1ROHGE, Bd. 14 (1875), Nr. 12, S. 33: Aufnahme eines Darlehns für einen Andern. Bedeutung der Ausdrücke „Verbürgen, Verbürgung“.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 485, Note 11.A husband, in order to secure a lease, pledged to Sempronius a tract of land belonging to his wife. The woman having afterwards borrowed money from Numerius on her own account, with the encumbrance of the same tract of land, immediately paid Sempronius for her husband. The question arose whether she contracted this obligation in violation to the Decree of the Senate. I answered that, if Numerius was aware that she had obligated herself for another, the Decree of the Senate would apply in the case stated.

Scævola, Opinions, Book I. Quintus Cæcilius Candidus wrote a letter to Paccius Rogatianus in the following terms: “Cæcilius Candidus to his friend Paccius Rogatianus, Greeting. I notify you by this letter that I have received and entered in my account-book the receipts of the twenty-five pieces of money which you have remitted to me, and at the first opportunity I will take care that this money shall not be idle, that is to say, that you will receive interest thereon.” The question arose whether interest can also be collected on account of this letter. I answered that interest will be due in a bona fide action, if the party collected it, or used the money for his own purposes.

Scævola, Opinions, Book I. A creditor sued a mandator, and judgment having been rendered against the latter he appealed. The question arises whether the debtor can be sued by the creditor while the appeal is pending? I answered that he could be. 1Titius wrote to a party who was about to be married, as follows: “Titius to Seius, Greeting. You know the conditions of my mind toward Sempronia, and therefore, since you are about to marry her with my approbation, I wish that you may be satisfied that you are contracting marriage in accordance with your rank. And although I am aware that Titia, her mother, will promise the girl a suitable dowry, still, I do not hesitate to become your surety in order to better secure your friendship toward my household. Therefore, take notice that I will indemnify you for whatever you may have stipulated with her on this account, and that I have ordered this to be done in accordance with my good faith.” In this manner, Titia, who had not directed Titius to do what he had promised in writing, nor had afterwards ratified it, promised a dowry to Seius. I ask whether, if the heir of Titius should make payment, he would be entitled to an action on mandate against the heir of Titia? I answered that, according to the facts stated, he would not be entitled to the action. The question also arose whether he would have a right of action on the ground of business transacted? I answered that he could not bring an action on this ground, for it was evident that Titius had given the mandate, not so much in behalf of Titia, as because he has consulted his own inclination. The inquiry was also made whether, if the husband should bring an action against the mandator, he would be barred by an exception? I answered that nothing had been stated by which he could be barred. 2The question arose, where anyone has authorized two persons to transact his business, whether each of them can be sued for the entire amount in an action on mandate? I answered that each of them could be sued separately for the entire amount, provided no more was recovered from both than was due. 3Where it was agreed upon, or tacitly understood, between a husband and his father-in-law, that the burden of the support of the wife should be borne by the husband, if the father paid interest on the dowry; the husband will have no action for the recovery of what he had not consumed, but if the father of the girl proves that he had directed his son-in-law to support his daughter, an action on mandate will lie. 4Lucius Titius committed the management of his business to his brother’s son, in the following words: “Seius to his son, Greeting. I think that, in accordance with nature, a son should transact business for his father and his brother, without any express concession. I, however, give you authority to transact all of my business that you may wish, where any necessity arises, whether you desire to make sales, or enter into agreements, or make purchases, or attend to anything else whatsoever; just as if you were the owner of all my property, and I will ratify all that you have done, without opposing you in any of your acts.” The question arose whether, if the party should alienate property or give a mandate, not with the intention of transacting the business, but fraudulently; would his act be valid? I answered that he who had given the mandate in question had certainly allowed great latitude, but that he had expected that the business would be conducted in good faith. I also ask whether, when Seius had contracted obligations in performing the duties of a magistrate, Lucius Titius could be sued on that ground, or whether his property would be liable on account of the above-mentioned words of the letter? I answered that he could not be sued, and that his property would not be liable.

Scævola, Opinions, Book I. The condition under which certain land subject to the payment of rent to the State was, that if, after a certain time, the rent should not be paid, the land would revert to the owner. It was afterwards given in pledge by the possessor, and the question arose whether this could legally be done? The answer was that the pledge was good where the payment of money was involved. 1It was also asked where the debtor, as well as the creditor, were in default for the payment of the rent, and for this reason a judicial decree had been rendered that the land belonged to the owner in compliance with the terms of the contract, whose position was preferable? The answer was that, according to the facts stated, as the rent had been paid, the owner might avail himself of his privilege, and the right to the pledge was extinguished.

Scævola, Opinions, Book I. Lucius Titius lent money at interest and received pledges, and Mævius lent money to the same debtor on the same pledges. I ask whether Titius should not be preferred, not only so far as the principal and the interest which accrued before Mævius made his loan are concerned, but also with respect to that which subsequently accrued. The answer was that Lucius Titius was entitled to the preference with reference to all that was due to him.

Scævola, Opinions, Book I. An arbitrator appointed for the partition of an estate, in the division of the property belonging to the same assigned certain claims, as a whole, which were due separately by debtors to the estate. The question arose, whether, if the debtors did not pay, each of the heirs could sell the property pledged in order to obtain the entire price. I answered that he could.

Scævola, Opinions, Book I. Where a debtor promised to pay interest at six per cent, and for many years paid interest at a lower rate, and the heir of the creditor brought suit for six per cent, although the debtor had done nothing to avoid payment at the lower rate, I ask whether an exception on the ground of bad faith, or one based on the contract can be interposed? I answered that, if the debtor had not been in default in paying the lower rate of interest, according to his custom, for so long a time, an exception could be interposed in accordance with the facts stated. 1The question arose whether an agent should pay interest on idle money, if his principal was not in a habit of lending money at interest, where an action has been brought on the ground of voluntary agency, or on that of mandate? The answer was that, if he had held the money on deposit and had done this in accordance with the custom of the mandator, he would not be obliged to pay anything by way of interest.

Scævola, Opinions, Book I. A husband left to his wife the usufruct of certain lands and other property and her dowry under a trust. The heirs delivered to her the usufruct in the land. Two years afterwards the marriage was declared to be null and void. The question arose whether what she had collected during that time could be recovered from her. I answered that what she had collected by way of profit could be recovered.

Scævola, Opinions, Book I. Titius placed a movable granary for wheat constructed of wooden boards upon the land of Seius. The question arises, who is the owner of the granary? The answer is that, according to the facts stated, it does not become the property of Seius.

Scævola, Opinions, Book I. A debtor, with the intention of defrauding his creditor, entered into an agreement with a neighbor with reference to the boundaries of a tract of land which he had hypothecated. The question arose whether he who purchased the land from the creditor could bring an action to establish the boundaries. The answer was that, according to the facts stated, he would not be any the less entitled to bring the action, because the debtor made the agreement without the knowledge of his creditor.

Scævola, Opinions, Book I. Where a man has been reduced to slavery, and afterwards obtains his freedom through the indulgence of the Emperor, he cannot, for this reason, be said to assume his obligations to his creditors.

Scævola, Opinions, Book I. He also held that whenever the principal debtor was discharged by his creditor, in such a way that a natural obligation remained, the surety continued to be liable; but when the obligation passed by a species of novation, the surety should be released either by law, or by means of an exception.