[PAULUS libro quarto quaestionum. ] §17.1.58.prSi praecedente mandato Titium defenderas quamuis mortuo eo, cum hoc ignorares, ego puto mandati actionem aduersus heredem Titii competere, quia mandatum morte mandatoris, non etiam mandati actio soluitur.
[PAULUS, from the fourth book of Questions.] If, on the basis of a prior mandate, you had defended Titius, even though he had died, as long as you were ignorant of this, I think that the action on mandate lies against the heir of Titius, because a mandate is dissolved by the death of the mandator, but not also the action on mandate.
quod si sine mandatu defensionem suscepisti, negotium quodammodo defuncti gerere institueras et quemadmodum, si illum liberasses, competeret tibi negotiorum gestorum actio, ita potest dici et heredem eius eadem actione teneri.
But if you undertook the defense without a mandate, you had in a way begun to manage the business of the deceased, and just as, if you had released him, the action on unauthorized agency would lie for you, so it can be said that his heir is also bound by the same action.
§17.1.58.1Lucius Titius creditori suo mandatorem dedit: deinde defuncto debitore maiore parte creditorum consentiente a praetore decretum est, ut portionem creditores ab heredibus ferant, absente eo creditore apud quem mandator exstiterat: quaero, si mandator conueniatur, an eandem habeat exceptionem quam heres debitoris.
Lucius Titius gave a mandator to his creditor; subsequently, upon the death of the debtor, with the consent of the majority of the creditors, it was decreed by the praetor that the creditors should take a portion from the heirs, while that creditor in whose presence the mandator had been given was absent. I ask: if the mandator is sued, does he have the same exception as the heir of the debtor?
respondi: si praesens apud praetorem ipse quoque consensisset, pactus uidetur iusta ex causa eaque exceptio et fideiussori danda esset et mandatori.
I answered: if he himself had also been present before the praetor and had consented, he would be deemed to have made an agreement for a just cause, and that exception ought to have been granted both to a surety and to a mandator.
sed cum proponas eum afuisse, iniquum est auferri ei electionem (sicut pignus aut priuilegium), qui potuit praesens id ipsum proclamare nec desiderare decretum praetoris.
But since you propose that he was absent, it is unjust that the choice (just like a pledge or a privilege) should be taken away from him, who, if present, could have declared that very thing and not required the decree of the praetor.
nec enim si quis dixerit summouendum creditorem, heredi consulitur, sed mandatori uel fideiussori, quibus mandati iudicio eandem partem praestaturus est.
For even if anyone should say that the creditor is to be barred, the interest of the heir is not consulted, but that of the mandator or the surety, to whom the heir is to make good that same portion in an action on mandate.
plane si ab herede partem accepisset, an in reliquum permittendum esset creditori fideiussorem conuenire, dubitatum est: sed uidebitur consentire decreto conueniendo heredem.
Clearly, if he had accepted the portion from the heir, it was doubted whether the creditor should be permitted to sue the surety for the remainder; but he will be deemed to consent to the decree by suing the heir.