[ULPIANUS libro uicensimo nono ad edictum. ] §14.4.3.prSed si seruus communis sit et ambo sciant domini, in utrumlibet ex illis dabitur actio: at si alter scit, alter ignorauit, in eum qui scit dabitur actio, deducetur tamen solidum quod ei qui ignorauit debetur.
[ULPIANUS, from the twenty-ninth book on the Edict.] But if a slave is owned in common, and both masters are aware of it, the action will be granted against either of them. But if one is aware and the other was ignorant, the action will be granted against the one who is aware, with a deduction, however, of the full amount owed to the one who was ignorant.
quod si ipsum quis ignorantem conuenerit, quoniam de peculio conuenitur, deducetur etiam id quod scienti debetur et quidem in solidum: nam et si ipse de peculio conuentus esset, solidum quod ei deberetur deduceretur, et ita Iulianus libro duodecimo digestorum scripsit.
But if anyone sues the ignorant master himself, since he is sued on the peculium, there will also be deducted what is owed to the one who is aware, and indeed in full; for even if the latter himself had been sued on the peculium, the full amount owed to him would have been deducted, and so Julian wrote in the twelfth book of the Digests.
§14.4.3.1Si seruus pupilli uel furiosi sciente tutore uel curatore in merce peculiari negotieter, dolum quidem tutoris uel curatoris nocere pupillo uel furioso non debere puto, nec tamen lucrosum esse debere, et ideo hactenus eum ex dolo tutoris tributoria teneri, si quid ad eum peruenerit: idem et in furioso puto.
If a slave of a ward or a person of unsound mind trades with merchandise belonging to his peculium with the knowledge of his tutor or curator, I think that the fraud of the tutor or curator should not prejudice the ward or the person of unsound mind, but yet it should not be a source of profit to them; and therefore, the ward is liable under the action on distribution for the fraud of his tutor only to the extent that any benefit has reached him; I think the same applies to the person of unsound mind.
quamuis Pomponius libro octauo epistularum, si soluendo tutor sit, ex dolo eius pupillum teneri scripsit: et sane hactenus tenebitur, ut actionem, quam contra tutorem habeat, praestet.
Although Pomponius wrote in the eighth book of his Letters that if the tutor is solvent, the ward is liable for his fraud; and indeed, he will be liable to the extent of making available the action which he has against his tutor.
§14.4.3.2Sed et si ipsius pupilli dolo factum sit, si eius aetatis sit, ut doli capax sit, efficere ut teneatur, quamuis scientia eius non sufficiat ad negotiationem.
But also, if it was done through the fraud of the ward himself, provided he is of such an age as to be capable of fraud, this has the effect of making him liable, although his own knowledge is not sufficient for the trading.
quid ergo est? scientia quidem tutoris et curatoris debet facere locum huic actioni: dolus autem quatenus noceat, ostendi.
What, then, is the rule? The knowledge of the tutor and curator indeed ought to give rise to this action; but as to how far their fraud causes prejudice, I have shown.