Notae ad Scaevolae Digestorum libros
Ex libro V
Dig. 36,1,82Scaevola libro quinto digestorum. Matrem et avunculum eosdemque creditores suos heredes scripsit Lucius Titius et eorum fidei commisit, ut post mortem restituerent, quod ex re familiari testatoris superfuerit, Septicio. heredes non modicam partem bonorum testatoris consumpserunt et multos heredes reliquerunt, quibus scientibus multa corpora, quae remanserant ex bonis Lucii Titii, Septicius possedit. quaesitum est, an id, quod Lucius Titius debuit matri et avunculo, heredes eorum a Septicio petere possint. respondit non posse. Claudius: aditione enim hereditatis confusa obligatio interciderat, sed fideicommissi repetitio erat: cuius aequitas defecit his, qui multa ex hereditate consumpsisse proponuntur.
The Same, Digest, Book V. Lucius Titius appointed his mother and his uncle, who were at the same time his creditors, his heirs, and charged them to transfer to Septitius any of his estate which might remain at the time of their death. The said heirs consumed a considerable part of the estate of the testator, and left several representatives who knew that Septitius had possession of many effects left from the estate of Lucius Titius. The question arose whether the heirs of the mother and the uncle could recover from Septitius anything which Lucius Titius owed them. The answer was that they could not do so. Claudius: The reason for this is that the obligations of the estate, having been merged, were extinguished; but that there could be a recovery on the ground of a trust, for those persons were destitute of justice who were alleged to have consumed much of the property belonging to the estate.
Dig. 46,3,88Scaevola libro quinto digestorum. Filiae intestato patri heredis negotia mater gessit et res vendendas per argentarios dedit idque ipsum codice conscriptum est: argentarii universum redactum venditionis solverunt et post solutionem novem fere annis, quidquid agendum erat, nomine pupillae mater egit eamque marito nuptum collocavit et res ei tradidit. quaesitum est, an puella cum argentariis aliquam actionem habet, quando non ipsa stipulata sit pretium rerum, quae in venditionem datae sunt, sed mater. respondit, si de eo quaereretur, an iure ea solutione argentarii liberati essent, responderi iure liberatos. Claudius: subest enim illa ex iurisdictione pendens quaestio, an pretia rerum, quae sciebant esse pupillae, bona fide solvisse videantur matri, quae ius administrationis non habebat: ideoque si hoc sciebant, non liberantur, scilicet si mater solvendo non sit.
Scævola, Digest, Book V. A father died intestate and left his daughter his heir. Her mother transacted her business, and caused her property to be sold by bankers, and all this was entered upon their accounts. The bankers paid over all the proceeds of the sale, and, after this, for about nine years, her mother attended to whatever was to be done in the name of her minor daughter, and finally, gave her in marriage, and delivered her property to her. The question arose whether the girl was entitled to any action against the bankers, when not she, but her mother, stipulated for the price of the property given to them to be sold. The answer was that if any doubt existed whether the bankers were released by law, after having paid over the money, it should be held that they were freed from liability. Claudius: For the following question with reference to authority to act remains, that is, whether the price of the property which the bankers knew to belong to the minor appeared to have been paid in good faith to the mother, who did not have the right of administration. Hence, if they were aware of this, they would not be released from liability, that is to say, provided the mother should prove to be insolvent.