[AFRICANUS libro quarto quaestionum. ]
[AFRICANUS, Questions, book 4] The tutor of a ward had died, having appointed Titius as his heir.
§16.1.19.prTutor pupilli decesserat herede instituto Titio: cum de adeunda hereditate dubitaret, quoniam male gesta tutela existimaretur, persuadente matre pupilli, ut suo periculo adiret, adiit stipulatusque de ea est indemnem se eo nomine praestari.
Since Titius was hesitating to enter upon the inheritance, because the administration of the tutelage was thought to have been badly managed, he entered upon it at the persuasion of the ward's mother, who urged him to do so at her own risk, and he stipulated with her that he should be kept harmless on that account.
si ex ea causa Titius pupillo aliquid praestitisset isque matrem conueniret, negauit exceptioni senatus consulti locum esse, quando uix sit, ut aliqua apud eundem pro eo ipso intercessisse intellegi possit.
If on that ground Titius should pay something to the ward and should sue the mother, he (Julianus) denied that there is room for the exception of the senatus consultum, since it is hardly possible that a woman could be understood to have interceded with the same person on behalf of that very person.
§16.1.19.1Nec dissimilem huic propositioni ex facto agitatam.
And a case not dissimilar to this proposition, arising from actual facts, was discussed.
cum quidam uir praetorius decessisset duobus filiis superstitibus, quorum alter impubes esset et alter legitimus tutor fratri esset et eum paterna hereditate abstinere uellet, mandatu uxoris defuncti, quae mater pupillo esset, abstento pupillo solum se hereditati miscuisse: ubi similiter se respondisse Iulianus ait, si ex ea causa agente pupillo damnum eo nomine passus esset, non impediri eum senatus consulto, quo minus a muliere rem seruaret.
When a certain man of praetorian rank had died leaving two surviving sons, of whom one was under age and the other was the legal tutor to his brother and wished to exclude him from the paternal inheritance, by the mandate of the deceased's wife, who was the mother of the ward, the ward being excluded, he (the brother) alone meddled with the inheritance. Julianus says that he gave a similar response in this case: if, upon the ward bringing an action, he had suffered loss on that account, he was not prevented by the senatus consultum from recovering the property from the woman.
§16.1.19.2In proposita specie et illud tractandum est, an is, qui mandato mulieris adierit, si damnum ob id patiatur, quod debitores hereditarii soluendo non fuerint, senatus consulto locus sit, quasi quodammodo eorum obligationes mulier susceperit.
In the proposed case, this must also be discussed: whether, if the person who entered upon the inheritance by the mandate of the woman suffers loss because the debtors of the estate were insolvent, there is room for the senatus consultum, as if the woman had in some way undertaken their obligations.
magis autem est, ut ne ob hanc quidem causam senatus consultum locum habeat, quando non ea mente fuerit, ut pro his intercederet, sed tutoris aduersus pupillum et ceteros forte creditores indemnem heredem praestaret.
It is more correct, however, to say that the senatus consultum does not have place even for this reason, since her intention was not to intercede for them, but to guarantee the heir harmless against the ward and other creditors, if any, of the tutor.
§16.1.19.3Denique si ponamus mulierem in emptionem hereditatis eo nomine damnum pati, quod debitores hereditarii soluendo non sint, nulla puto dubitatio erit, quin senatus consulto locus non sit, etiamsi maxime creditoribus aliquantum praestiterit.
Finally, if we assume that the woman, in purchasing the inheritance, suffers loss on the ground that the debtors of the estate are insolvent, I think there is no doubt that there is no room for the senatus consultum, even if she has paid a great deal to the creditors.
§16.1.19.4Quid ergo si, cum propterea de adeunda hereditate dubitaret Titius, quod parum idonea nomina debitorum uiderentur, mulier hoc ipsum repromisit, ut, quanto minus a quoquo eorum seruari posset, ipsa praestaret? prope est, ut sit intercessio.
What then if, when Titius was hesitating to enter upon the inheritance for the reason that the claims against the debtors seemed insufficient, the woman promised this very thing, that she herself would make good whatever less could be recovered from any of them? This is close to being an intercession.
§16.1.19.5Cum haberes Titium debitorem et pro eo mulier intercedere uellet nec tu mulieris nomen propter senatus consultum sequereris, petit a me mulier mutuam pecuniam solutura tibi et stipulanti mihi promisit ignoranti, in quam rem mutuaretur atque ita numerare me tibi iussit: deinde ego, quia ad manum nummos non habebam, stipulanti tibi promisi: quaesitum est, si eam pecuniam a muliere petam, an exceptio senatus consulti ei prosit.
When you had Titius as a debtor and a woman wished to intercede for him, but you did not accept the woman's name because of the senatus consultum, the woman asked me for a loan in order to pay you, and she promised me, who was stipulating and ignorant of the purpose for which she was borrowing, and so she ordered me to pay you. Then I, because I did not have the cash at hand, promised you upon your stipulation. It was asked, if I demand that money from the woman, whether the exception of the senatus consultum would benefit her.
respondit uidendum, ne non sine ratione dicatur eius loco, qui pro muliere fideiusserit, haberi me debere, ut quemadmodum illi, quamuis ignorauerit mulierem intercedere, exceptio aduersus creditorem detur, ne in mulierem mandati actio competat, ita mihi quoque aduersus te utilis exceptio detur mihique in mulierem actio denegetur, quando haec actio periculo mulieris futura sit.
He answered that it must be considered whether it might not without reason be said that I ought to be held in the place of one who has acted as surety for a woman, so that, just as such a person is granted an exception against the creditor even though he was ignorant that the woman was interceding, lest an action on mandate lie against the woman, so also an equitable exception should be granted to me against you, and my action against the woman should be denied, since this action would be at the risk of the woman.
et haec paulo expeditius dicenda, si prius, quam ego tibi pecuniam soluerim, compererim eam intercessisse: ceterum si ante soluerim, uidendum, utrumne nihilo minus mulieri quidem exceptio aduersus me dari debeat et ego tibi condicere pecuniam possim, an uero perinde habendum sit, ac si initio ego pecuniam mulieri credidissem ac rursus tu mihi in creditum isses.
And this can be said somewhat more easily if, before I paid you the money, I discovered that she had interceded. But if I paid before, we must see whether nevertheless an exception against me ought to be granted to the woman and I can claim the money from you by condictio, or whether indeed it should be treated just as if in the beginning I had lent the money to the woman and you had in turn become my creditor.
quod quidem magis dicendum existimauit, ut sic senatus consulto locus non sit: sicuti et cum debitorem suum mulier deleget, intercessioni locus non sit.
Indeed, he (Julianus) thought that the latter ought rather to be said, so that there is no room for the senatus consultum; just as when a woman delegates her own debtor, there is no room for intercession.
quae postea non recte comparari ait, quando delegatione debitoris facta mulier non obligetur, at in proposito alienam obligationem in se transtulerit, quod certe senatus fieri noluerit.
But he (Africanus) says that later these are not correctly compared, since when a delegation of a debtor is made, the woman is not obligated, whereas in the proposed case she has transferred another's obligation to herself, which indeed the senate did not want to happen.