[ULPIANUS libro uicensimo nono ad edictum. ] §14.6.7.prItem si filius familias fideiusserit, Neratius libro primo et secundo responsorum cessare senatus consultum ait.
[ULPIANUS, On the Edict, Book 29] Likewise, if a son under paternal power has become a surety, Neratius states in his first and second books of Opinions that the senate's decree does not apply.
idem Celsus libro quarto.
Celsus says the same in his fourth book.
sed Iulianus adicit, si color quaesitus sit, ut filius familias, qui mutuam accepturus erat, fideiuberet alio reo dato, fraudem senatus consulto factam nocere et dandam exceptionem tam filio familias quam reo, quoniam et fideiussori filii subuenitur.
But Julian adds that, if a pretext was sought so that the son under paternal power, who was to receive the loan, should become a surety with another debtor being put forward, the evasion practiced against the senate's decree is detrimental, and an exception must be given to both the son under paternal power and the debtor, since relief is also granted to the surety of a son.
§14.6.7.1Idem ait, si duos reos accepero filium familias et Titium, cum ad filium familias esset peruentura pecunia, ideo autem reum Titium acceperim, ne quasi fideiussor auxilio senatus consulti uteretur, utilem esse exceptionem aduersus fraudem dandam.
He also says that, if I accept two debtors, a son under paternal power and Titius, while the money was going to reach the son, and I accepted Titius as a debtor for the reason that he might not, as a surety, use the assistance of the senate's decree, an exception against the fraud is useful and must be granted.
§14.6.7.2Sed et si filius familias patre suo relegato uel longo tempore absente dotem pro filia promiserit et rem patris pignori dederit, senatus consultum cessabit.
But also, if a son under paternal power, when his father has been relegated or has been absent for a long time, has promised a dowry for his daughter and given his father's property in pledge, the senate's decree will not apply.
patris tamen res non tenebitur: plane si patri heres exstiterit filius et pignus persequatur, exceptione doli summouebitur.
Yet the father's property will not be bound; clearly, if the son becomes heir to his father and seeks to recover the pledge, he will be barred by the exception of fraud.
§14.6.7.3Mutui dationem non solum numeratae pecuniae, uerum omnium, quae mutua dari possunt, an accipere debeamus, uidendum.
We must consider whether we ought to understand the giving of a loan not only as to counted money, but also as to all things that can be given as a loan.
sed uerba uidentur mihi ad numeratam pecuniam referri: ait enim senatus 'mutuam pecuniam dedisset'. sed si fraus sit senatus consulto adhibita, puta frumento uel uino uel oleo mutuo dato, ut his distractis fructibus uteretur pecunia, subueniendum est filio familias.
But the words seem to me to refer to counted money; for the senate says, "had given money on loan." However, if fraud is employed against the senate's decree, as for instance if wheat, wine, or oil is given on loan so that, these fruits being sold, he might use the money, the son under paternal power must be relieved.
§14.6.7.4Si filius in alterius erat potestate, cum mutua daretur, nunc in alterius, mens senatus consulti non cessat: dabitur itaque exceptio.
If the son was in one person's power when the loan was given, and is now in another's, the purpose of the senate's decree does not cease; therefore, the exception will be granted.
§14.6.7.5Sed et si patri eius non mors, sed alia causa inciderit quo minus sit in ciuitate, dicendum senatus consulto locum esse.
But also, if some other cause than death should happen to his father preventing him from being in the state, it must be said that the senate's decree has place.
§14.6.7.6Non solum ei, qui mutuam dedisset, sed et successoribus eius deneganda est actio.
An action must be denied not only to the one who had given the loan, but also to his successors.
§14.6.7.7Proinde et si alius mutuam dedit, alius stipulatus est, dabitur aduersus eum exceptio, licet hic non dederit.
Accordingly, even if one person gave the loan and another stipulated for it, the exception will be granted against him, although he did not give it.
sed et si alteruter eorum ignorauit in patris esse potestate, seuerius dicendum est utrique nocere.
But if either of them was ignorant that he was under paternal power, it must be said more strictly that it is detrimental to both.
idem est et in duobus reis stipulandi.
The same is true in the case of two joint-creditors who stipulate.
§14.6.7.8Item si duos filios familias accepero reos, sed alterum putaui patrem familias, intererit, ad quem pecunia peruenit, ut, si eum sciui filium familias ad quem peruenit pecunia, exceptione summouear, si ad eum quem ignorem, non summouear.
Likewise, if I accept two sons under paternal power as debtors, but I thought one of them was a head of a household, it will matter to whom the money came; so that, if I knew that the one to whom the money came was a son under paternal power, I am barred by the exception, but if it came to the one whom I did not know to be such, I am not barred.
§14.6.7.9Siue autem sub usuris mutua data sunt siue sine usuris, ad senatus consultum spectat.
Whether the loans were given with interest or without interest, it falls under the senate's decree.
§14.6.7.10Quamquam autem non declaret senatus, cui exceptionem det, tamen sciendum est et heredem filii, si pater familias decesserit, et patrem eius, si filius familias decesserit, exceptione uti posse.
Although the senate does not declare to whom it grants the exception, yet it must be known that both the heir of the son, if he died after becoming a head of a household, and his father, if the son died while under paternal power, can use the exception.
§14.6.7.11Interdum tamenetsi senatus consulto locus sit, tamen in alium datur actio, ut puta filius familias institor mutuam pecuniam accepit: scribit enim Iulianus libro duodecimo ipsum quidem institorem exceptione senatus consulti usurum, si conueniatur, sed institoriam actionem aduersus eum qui praeposuit competere.
Sometimes, however, even if there is place for the senate's decree, yet an action is given against another; as for instance, a son under paternal power acting as a manager accepted loan money. For Julian writes in his twelfth book that the manager himself indeed will use the exception of the senate's decree if he is sued, but the action against the principal who appointed him is competent.
quamquam, inquit, si ipse pater eum praeposuisset merci suae uel peculiarem exercere passus esset, cessaret senatus consultum, quoniam patris uoluntate contractum uideretur: nam si scit eum negotiari, etiam hoc permississe uidetur, si non nominatim prohibuit merces accipere.
However, he says, if the father himself had appointed him to his trade or had permitted him to employ a peculiar fund, the senate's decree would not apply, because it would seem to be contracted by the father's will; for if he knows that he is trading, he seems also to have permitted this, unless he expressly prohibited him from receiving merchandise.
§14.6.7.12Proinde si acceperit pecuniam et in rem patris uertit, cessat senatus consultum: patri enim, non sibi accepit.
Accordingly, if he received the money and converted it to his father's use, the senate's decree does not apply; for he received it for his father, not for himself.
sed et si ab initio non sic accepit, uerum postea in rem patris uertit, cessare senatus consultum libro duodecimo digestorum Iulianus ait intellegendumque ab initio sic accepisse, ut in rem uerteret.
But even if he did not receive it so from the beginning, but afterwards converted it to his father's use, Julian says in his twelfth book of the Digests that the senate's decree does not apply and it must be understood that he received it from the beginning so as to convert it.
non tamen uertisse uidebitur, si mutuam pecuniam acceptam patri in proprium debitum soluit et ideo, si pater ignorauit, adhuc senatus consulto locus erit.
However, he will not be seen to have converted it if he paid the borrowed money received to his father for his own debt, and therefore, if the father was ignorant of it, there will still be place for the senate's decree.
§14.6.7.13Quod dicitur in eo, qui studiorum causa absens mutuum acceperat, cessare senatus consultum, ita locum habet, si probabilem modum in mutua non excessit, certe eam quantitatem, quam pater solebat subministrare.
What is said regarding him who, being absent for the purpose of study, had accepted a loan, that the senate's decree does not apply, holds place only if he did not exceed a reasonable limit in the loan, at least that amount which his father was accustomed to supply.
§14.6.7.14Si filius accepit mutuam pecuniam, ut eum liberaret, qui, si peteret, exceptione non summoueretur, senatus consulti cessabit exceptio.
If a son accepted borrowed money to release someone who, if he sued, would not be barred by the exception, the exception of the senate's decree will not apply.
§14.6.7.15Hoc amplius cessabit senatus consultum, si pater soluere coepit quod filius familias mutuum sumpserit, quasi ratum habuerit.
Moreover, the senate's decree will not apply if the father has begun to pay what the son under paternal power borrowed, as if he had ratified it.
§14.6.7.16Si pater familias factus soluerit partem debiti, cessabit senatus consultum nec solutum repetere potest.
If, after becoming a head of a household, he has paid part of the debt, the senate's decree will not apply, nor can he recover what has been paid.