Tryphoninus, Disputations, Book II. An agreement entered into between an heir and a legatee, by which the latter agrees not to take security from the former, has been held to be valid; as a Constitution of the Divine Marcus recorded in the Semestria, sets forth that the will of the deceased shall be observed in this, as well as in other matters; and the release of security to the heir by the legatee under contract cannot be revoked if he changes his mind; as it is entirely lawful for a man to change for the worse his power to enforce his legal right, or his hope of future payment.

Tryphoninus, Disputes, Book II. A man who owed a debt which did not bear interest transacted the business of his creditor, and the question arose whether he could be compelled to pay interest on the above-mentioned sum by a suit based on business transacted. I stated that he would owe interest if he had been required to collect it for himself, but if the day for payment had not arrived at the time when he was transacting the business, he would not be compelled to pay interest; but if the time had elapsed, and he did not include the money owed by himself in the accounts of the creditor whose business he was transacting, he certainly would be compelled to pay interest in a bona fide action. Let us see what interest he would owe, whether it would be that on which the same creditor would loan money to others, or would it be the highest rate? It is true that anyone who converts to his own use the money of a party whose guardianship or business he has charge of, or if a magistrate appropriates the money of a municipality, he must pay the highest rate of interest, as has been established by the Divine Emperors. But it is different in this instance, where a party did not appropriate money from the business which he was transacting, but borrowed it from a friend before he assumed the administration of the latter’s affairs; for those to whom the above rule has reference were obliged to show good faith without compensation, at all events such as was absolute and without any profit whatever; and where they appear to have abused their privileges they are forced to pay the highest rate of interest by way of a kind of penalty; but this party received property as a loan in a legal way, and is liable to interest because he did not pay the principal, and not because he appropriated to his own use money derived from the business which he was transacting. It makes a great deal of difference whether the indebtedness has just begun to be incurred, or whether it was done previously, because in the latter instance this is enough to make a debt bear interest which did not do so before.

Tryphoninus, Disputations, Book II. I do not think that a guardian should be liable for a higher rate of interest, who has borrowed money belonging to his ward from his fellow-guardian and has given security, and promised a rate of interest which other debtors usually pay to wards, because he did not appropriate the money to his own use, and did not secretly or prodigally squander said money as if it was his own, and if the loan had not been made to him at this rate by his fellow-guardian, he could have obtained it elsewhere. It makes a great deal of difference where a guardian publicly and openly renders himself a debtor to his ward, just as any stranger would do; and where, under the pretext of administering the guardianship for the benefit of his ward, he secretly profits by the money of the latter.

Tryphoninus, Disputations, Book II. In compliance with a Decree of the Divine Marcus, where a freeborn man was appointed guardian of one who is emancipated had a right to be excused, our Emperor, along with his father, the Divine Severus, stated in a Rescript that the same cause for release could also be advanced by anyone who had obtained the right to wear a gold ring. 1Therefore, if a freeborn guardian or curator is appointed for an emancipated ward, entitled to wear a gold ring, the result is that an application to be excused offered by him on account of a difference of condition should not be accepted. 2If, however, before the ward or minor under twenty-five years of age has acquired the right to wear a gold ring, Lucius Titius, having been appointed his guardian, should be excused on account of his being freeborn, he can be appointed a second time the guardian or curator of said minor, after he has obtained this privilege; for the same reason that it has been decided, and stated in a Rescript, that a guardian shall be excused who has been appointed within a year after he had returned from employment in the public service, and that period having elapsed, he can be appointed in his own place. 3And, although a freedman who acts as agent for the transaction of the business of his patron, a Senator, has a valid excuse for not assuming the guardianship of others, still, he who has acquired the right to wear a gold ring and by this means passes into the rank of freeborn persons cannot avail himself of an excuse of this kind.

Tryphoninus, Disputations, Book II. The same rule will apply to those who have obtained the right to wear rings.

Tryphoninus, Disputations, Book II. We also hold that legacies with which a substitute is charged are payable where the appointed heir has failed to comply with a condition, which was not in his power. For if he should not comply with it when he was able to do so, he should be considered as occupying the same position as an heir who refuses to accept an estate, as he will not be entitled to any benefit from it, and deservedly so, as he did not observe the condition.

Tryphoninus, Disputations, Book II. Decisions must be rendered by the Prætor in Latin.

Tryphoninus, Disputations, Book II. If he who has obtained the right to wear a gold ring should commit adultery with the wife of his patron; or with his patroness; or with the wife of him, or of the father of him from whom he obtained his freedom; or with the mother, or the son’s wife; or with the daughter of any of these persons, shall he be punished as a freedman? And if he is surprised in adultery, can he be killed with impunity? I am inclined to think that he should be subjected to the penalty imposed upon freedmen; because, by the Julian Law for the suppression of Adultery, and with a view to the protection of marriage, it is settled that they should be considered as freedmen; and, as the result of this advantage, the case of patrons should not be rendered any worse.