a BOOK III. and 9. The pupillus infantia maior' can himself undertake legal transactions, and even judicial acts, wherever possible, but the 'auctoritatis interpositio,' that is, the " D. 46, 6, 6, personal co-operation of the tutor which supplements the defective legal capacity of the pupil, is necessary for their operation, if the property of the pupil be directly or indirectly diminished by such transaction.cr. § 60; D. Ulp. Licentia (tutoribus) erit, utrum malint §114. Gai. ii ipsi suscipere iudicium, an pupillum exhibere, ut 82; D. 12, 1, 19, 1; § 139. ipsis auctoribus iudicium suscipiatur, ita tamen ut pro his, qui fari non possunt vel absint, ipsi tutores iudicium suscipiant: pro his autem, qui supra septimum annum aetatis sunt et praesto fuerint, auctoritatem praestent.-1. 1, § 2, D. h. t.' Gai. Obligari ex omni contractu sine tutoris auctoritate non potest: adquirere autem sibi stipulando et per traditionem accipiendo etiam sine tutoris auctoritate potest; sed credendo sibi obligare non potest, quia sine tutoris auctoritate nihil alienare potest.-1. 9 pr., D. de auct. tut. 26, 8.2 Paul. Furiosus et pupillus, ubi ex re actio venit, obligantur etiam sine curatore vel tutoris auctoritate, veluti si communem fundum habeo cum his et aliquid in eum impendero vel damnum in eo pupillus dederit: nam iudicio communi dividundo obligabuntur.-D. 44, 7, 46.3 1 It is left to the discretion of the guardians, whether they will themselves rather undertake an action or produce the ward, that he may with their authorisation undertake the action, but so that for those who cannot yet speak, or are absent, the guardians themselves undertake the action; they can extend their sanction, however, on behalf of those who have passed their seventh year of age, and are present. 2 A ward cannot be made liable upon any contract without the sanction of the guardian; but he can acquire for himself by stipulation and acceptance through delivery even without the tutor's sanction ; but he can contract no obligation for himself by loan, because he can dispose of nothing without the tutor's sanction. 3 Where an action arises from the thing, a madman and BOOK III. 4 Gai. i. 184. Ulp. Si tutor mutuam pecuniam pupillo dederit,... naturaliter obligabitur in quantum locupletior factus est: nam in pupillum cuivis actionem in quantum locupletior factus est dandam D. Pius rescripsit.—1. 5 pr., D. de auct. tut.1 The tutoris auctoritas must follow the conclusion of the legal transaction itself, and unconditionally. Gai. Tutor statim in ipso negotio praesens debet auctor fieri, post tempus vero aut per epistulam interposita eius auctoritas nihil agit.— 1. 9, § 5 eod.2 Ulp.: Etsi condicionalis contractus cum pupillo fiat, tutor debet pure auctor fieri.—1. 8 eod.3 In an affair of his own (in rem suam) the tutor can never give his auctoritas." Id. Pupillus obligari tutori eo auctore non potest.-1. 5 pr. eod.* Id.: Quamquam regula sit iuris civilis in rem suam auctorem tutorem fieri non posse, tamen potest tutor proprii sui debitoris hereditatem adeunti pupillo auctoritatem accommodare, quamvis per hoc debitor eius efficiatur: prima enim ratio auctoritatis ea est, ut heres fiat, per ward become liable even without the curator or sanction of the tutor; for example, if I possess land in common with them, and shall have spent something upon it, or the ward has caused some damage on it; for they will be liable by the action for the partition of joint property. 1 1 If a guardian shall have made an advance to a ward . . . he will incur a natural obligation for so much as he has been enriched; for the late Emp. Pius by rescript stated that an action must be given to any one soever against a pupil for so much as he has been enriched. 2 The guardian must at once give his authorisation at the moment of the transaction itself, whilst this authorisation interposed after the time or by letter is of no effect. Although a conditional contract be made with a pupil, the guardian must give his authorisation unconditionally. A ward cannot become liable to a guardian by his authorisation. consequentias contingit, ut debitum subeat.-1. I Transactions entered into by minors are, as a rule, operative even without the co-operation of the curator, but for certain cases 'consensus,' i.e., informal-even supplementary-confirmation thereof is requisite." If there be several tutors, sometimes the auctoritas of all is requisite; at other times that of a single tutor suffices for the validity of acts in the Law. Ulp. xi. 26: Si plures sint tutores, omnes in omni re debent auctoritatem accommodare, praeter eos qui testamento dati sunt: nam ex his vel unius auctoritas sufficit." If, however, the administration has been committed to one alone of them (tutor gerens), the rest (tutores honorarii) have merely to take an oversight of it, and the auctoritas of the former alone is operative. Inst. I, 24, I: Sed et si ex testamento vel inquisitione duo pluresve dati fuerint, potest unus offerre satis de indemnitate pupilli vel adulescentis et contutori vel concuratori praeferri, ut solus administret. . . . Quodsi nemo eorum satis offerat, si quidem adscriptum fuerit a testatore quis gerat, ille gerere debet: quodsi non fuerit adscriptum, quem maior pars elegerit, ipse gerere debet, ut edicto praetoris cavetur; sin autem. ipsi tutores dissenserint circa eligendum eum vel eos, qui gerere debent, praetor partes suas interponere debet.3 1 Although there is a rule of civil law that no guardian can give his sanction (to his ward) for his own business, yet he can give his sanction to the ward upon taking up the inheritance of his own debtor, although the ward become his debtor thereby; for the first reason of the sanction is that the ward become heir, and in consequence thereof it happens that he incurs the debt. If there be several guardians, they must all give their sanction in every matter, unless they are testamentary tutors, for of these the authority of one is enough. 3 But if two or more shall have been nominated by testament BOOK III. § 60, ad fin. §67, ad fin. BOOK III. a Sc. qui gerit. Ulp.: Ceteri igitur tutores non administrabunt, sed erunt hi quos vulgo honorarios appellamus; nec quisquam putet ad hos periculum nullum redundare; . . . dati sunt enim quasi observatores eius et custodes, imputabiturque eis quandoque, cur, si male eum conversari videbant, suspectum eum non fecerunt.-1. 3, § 2, D. h. t.1 a Pomp. Etsi pluribus datis tutoribus unius. auctoritas sufficiat, tamen si tutor auctoretur, cui administratio tutelae concessa non est, id ratum a praetore haberi non debet.-1. 4, D. de auct. tut. The administration, finally, can be also divided between the several tutors according to special departments, or according to localities; particularly in the case of an extensive tutelary property and management on a large scale; and each tutor then is accounted 'honorarius' in respect of the limits of management by the other. Ulp. Item si dividi inter se tutelam velint tutores, audiendi sunt, ut distribuatur inter eos or after inquiry, any one of them can offer security for the indemnification of the ward or youth, and be preferred to his co-tutor or co-curator, so that he may administer alone. . . . But if none of them offer security, if it has been specified by the testator who is to act, that one must act; but if no specific appointment has been made, he must act whom the majority elect, as is provided by the Praetor's Edict. But if the guardians themselves shall have disagreed about the election of the one or those who ought to act, the Praetor must interfere. 1 The remaining guardians, accordingly, will not administer, but there will be so-called honorary guardians; and let not any one suppose that no risk extends to them; . . . for they were appointed as though to have an oversight and watch over him, and it will at the proper time be fixed upon them to account for their not having treated him with suspicion, if they observed him engaged in malpractices. 2 Although when several guardians have been appointed the sanction of one is sufficient, yet an act must not be treated by the Praetor as valid if the guardian sanction it from whom the administration of the guardianship has been withheld. administratio-vel in partes vel in regiones: et § 152. OBLIGATIONS ARISING FROM THE DISCHARGE of From the conduct of the guardian's business, obligations arise between him and the ward which are grounded upon a quasi-contractual relation." Et Gai. Tutelae quoque iudicio qui tenentur, After the termination of the guardianship, the 'actio tutelae,' involving infamy, lies against the tutor for render of accounts, handing over the property adminis 1 Likewise if the guardians desire that the guardianship be divided amongst them, they must be attended to, that the administration may be distributed amongst them—either in parts, or according to localities; and if the division have been so made, every one will be excluded from a plea in respect of such part or such locality as he does not administer. 2 Those too who are liable by the action of guardianship are not properly regarded as liable upon a contract (for no transac tion is contracted between a guardian and ward); but inasmuch as they are certainly not liable upon a wrongful act, they are considered to be liable upon a quasi-contract. Now in this case also the actions are reciprocal; for not only has the ward an action against the guardian, but, on the other hand, the guardian has one against the ward, if he has either spent anything upon the ward's property, or has become liable for him, or has pledged his own property to his creditor. BOOK III. Part 11. " § 135. |