- Source
- Digesta Iustiniani Augusti. Mommsen, Theodor & Krueger, Paul, editors. Berlin: Weidmann, 1870.
- Translation
- AI-generated (gemini-3.5-flash) — machine translation; may contain errors
- Languages
- 日本語 · English · 简体中文 · 한국어
- CTS URN
- urn:cts:latinLit:phi2806.phi002.humanitext-lat1:3.3.39.pr-3.3.39.7
- Generated
- Humanitext Reader · reader.humanitext.ai · 2026-11-03
This text discusses the obligation of a defender or procurator to defend their principal in actions and interrogations, and details various specific circumstances (such as oaths, dowries, status disputes, restoration of rights, and tutor accusations) where security for ratification is required.
[IDEM libro nono ad edictum.]
[THE SAME in the ninth book on the Edict.]
Non solum autem in actionibus et interdictis et in stipulationibus debet dominum defendere, uerum in interrogationibus quoque, ut in iure interrogatus ex omnibus causis respondeat, ex quibus dominus.1 an igitur heres sit absens, respondere debebit et si responderit uel tacuerit, tenebitur.
However, he must defend his principal not only in actions, interdicts, and stipulations, but also in interrogations, so that, when interrogated in court, he may answer on all grounds on which the principal would have to answer. Therefore, he will have to answer whether the absentee is the heir, and if he answers or remains silent, he will be held liable.
Qui alieno nomine agit quamcumque actionem, id ratum habiturum eum ad quem ea res pertinebit2 cauere debet. sed interdum licet suo nomine procurator experiatur, tamen de rato debebit cauere, ut Pomponius libro uicensimo quarto scribit. ut puta iusiurandum procuratori rettulit, iurauit absenti dari oportere: agit hoc iudicio suo nomine propter suum iusiurandum (neque enim haec actio domino competere potuit): sed debebit de rato cauere. sed et si procuratori constitutum est et ex ea causa agat: dubitandum non est quin locus sit de rato cautioni idque Pomponius scribit.
Anyone who brings any action in another’s name must guarantee that the person to whom the matter belongs will ratify it. But sometimes, even though the procurator sues in his own name, he must nevertheless guarantee ratification, as Pomponius writes in his twenty-fourth book. As for example, the opponent referred the oath back to the procurator, and he swore that the property ought to be given to the absentee: he brings this action in his own name on account of his oath (for this action could not belong to the principal); but he will have to guarantee ratification. But also, if a promise to pay has been made to the procurator and he sues on that ground, there is no doubt that there is room for the guarantee of ratification, and Pomponius writes this.
Quaeritur apud Iulianum: utrum dominum solum ratam rem habere debet satisdare3 an etiam ceteros creditores? et ait dumtaxat de domino cauendum nec illis uerbis 'ad quem ea res pertinet' creditores contineri: nam nec ipsi domino haec incumbebat cautio.
It is asked in Julian: whether he ought to guarantee that the principal alone will ratify the matter, or also the other creditors? And he says that security must be given only regarding the principal, and that the creditors are not included in those words ‘the person to whom the matter belongs’; for this guarantee was not incumbent even on the principal himself.
Si de dote agat pater, cauere debet ratam rem filiam habituram: sed et defendere eam debet, ut et Marcellus scribit.
If a father sues for a dowry, he must guarantee that his daughter will ratify it; but he must also defend her, as Marcellus also writes.
Si pater filii nomine iniuriarum agat, cum duae sint actiones una patris altera filii, cessat de rato cautio.
If a father brings an action for injuries in his son’s name, since there are two actions, one of the father and the other of the son, the guarantee of ratification is not required.
Si status controuersiam cui faciat procurator, siue ex seruitute in libertatem aduersus eum quis litiget siue ipse ex libertate in seruitutem petat, debet cauere ratam rem dominum habiturum. et ita edicto scriptum est, ut ex utroque latere quasi actor habeatur.
If a procurator raises a dispute about status against someone, whether someone litigates against him from slavery to freedom, or he himself claims someone from freedom to slavery, he must guarantee that the principal will ratify it. And so it is written in the Edict, so that he is regarded on both sides as if he were the plaintiff.
Est et casus, quo quis eiusdem actionis nomine et de rato caueat et iudicatum solui. ut puta postulata est cognitio de in integrum restitutione, cum minor circumscriptus in uenditione diceretur: alterius procurator existit: debet cauere hic procurator et ratam rem dominum habiturum, ne forte dominus reuersus uelit quid petere, item iudicatum solui, ut si quid forte propter hanc restitutionem in integrum praestari adulescenti debeat, hoc praestetur. et haec ita Pomponius libro uicensimo quinto ad edictum scribit.
There is also a case in which one must guarantee, on account of the same action, both ratification and that the judgment will be satisfied. As for example, a hearing for restoration to the original condition is requested, when a minor is said to have been defrauded in a sale: the procurator of the other party appears: this procurator must guarantee both that the principal will ratify it, lest by chance the principal on his return should want to claim something, and likewise that the judgment will be satisfied, so that if anything ought by chance to be paid to the youth on account of this restoration to the original condition, this shall be paid. And Pomponius writes this in the twenty-fifth book on the Edict.
Item ait, si suspectus tutor postuletur, defensorem eius oportere etiam de rato cauere, ne reuersus ille uelit retractare quod actum est. sed non facile per procuratorem quis suspectus accusabitur, quoniam famae causa est, nisi constet ei a tutore mandatum nominatim, aut si etiam absente tutore, quasi non defenderetur, praetor erat cogniturus.4
He also says that, if an untrustworthy tutor is accused, his defender must also guarantee ratification, lest on his return he should wish to retract what has been done. But someone will not easily be accused of being untrustworthy through a procurator, since it is a matter affecting reputation, unless it is clear that he has a specific mandate from the tutor, or if, even in the absence of the tutor, as if he were not defended, the praetor was going to take cognizance of the matter.
- 3.3.39.prex quibus dominus
The verb respondeat or respondere deberet is implied after ex quibus dominus. It means that the defender or the interrogated representative must answer on all grounds on which the absent principal himself would have had to answer if he had been present.
- 3.3.39.1id ratum habiturum eum ad quem ea res pertinebit
An accusative with infinitive (A.C.I.) construction, where eum is the subject of the infinitive, and id is the object of habiturum [esse]. The entire clause expresses the content of cauere debet ('must guarantee'). Here, id refers to the action or outcome of the litigation, and ratum habere means 'to ratify' (what has been done by another).
- 3.3.39.2utrum dominum solum ratam rem habere debet satisdare
A double indirect question introduced by utrum ... an .... dominum solum is the accusative subject of the infinitive clause ratam rem habere. The main verb of this indirect question is the impersonal debet satisdare ('ought to guarantee'), which takes the accusative and infinitive clause as its object.
- 3.3.39.7aut si etiam absente tutore, quasi non defenderetur, praetor erat cogniturus
The aut si ... clause forms an exception to non facile ... accusabitur ('will not easily be accused') parallel to the preceding nisi clause (nisi constet...). praetor erat cogniturus is an active periphrastic conjugation (future participle + esse), expressing the intention or expectation that 'the praetor was going to take cognizance/hear the case'.