[SCAEUOLA libro primo responsorum. ]
[SCAEVOLA, from the first book of Responses.] A creditor sued a mandator; the latter, having been condemned, appealed.
§17.1.60.prCreditor mandatorem conuenit: is condemnatus prouocauit: quaerendum est, an manente appellatione debitor a creditore conueniri potest.
The question is whether, while the appeal is pending, the debtor can be sued by the creditor.
respondi posse.
I answered that he can.
§17.1.60.1Ad eum qui uxorem ducturus erat litteras fecit tales: 'Titius 'Seio salutem.
To one who was about to marry, he sent a letter of this sort: "Titius to Seius, greetings.
Semproniam pertinere ad animum meum cognouisti: ideoque cum ex uoto 'meo nuptura tibi sit, uelim certus sis secundum dignitatem tuam contrahere te matrimonium.
You know that Sempronia is near to my heart; and therefore, since she is to marry you in accordance with my wish, I would have you be assured that you are contracting a marriage worthy of your position.
et quamuis idonee repromissuram tibi Titiam matrem puellae dotem sciam, tamen 'et ipse quo magis conciliem animum tuum domui meae, fidem meam interponere non dubito: quare scias, quodcumque ab ea ex hac causa stipulatus fueris, id me mea fide esse 'iussisse saluum te habiturum.
And although I know that Titia, the girl's mother, will guarantee the dowry to you in a suitable manner, nevertheless, I myself also, in order the more to win your affection for my house, do not hesitate to interpose my own credit.
' atque ita Titia, quae neque Titio mandauerat neque ratum habuerat quod scripserat, dotem Seio promisit.
Therefore, you should know that whatever you shall stipulate from her on this account, I, on my own credit, have ordered that you shall hold it safe." And thus Titia, who had neither mandated Titius nor ratified what he had written, promised the dowry to Seius.
quaero, si heres Titii ex causa mandati praestiterit, an actione mandati heredem Titiae conuenire potest.
I ask: if the heir of Titius has made payment on the ground of the mandate, can he sue the heir of Titia by the action on mandate?
respondi secundum ea, quae proponuntur, non posse.
I answered that, according to the facts presented, he cannot.
item quaesitum est, an nec negotiorum gestorum.
It was also asked whether he could do so on the ground of unauthorized management of affairs.
respondi nec hoc nomine iure agere posse: palam enim facere Titium non tam Titiae nomine, quam quod consultum uellet, mandasse.
I answered that he cannot sue by law under this title either; for it is clear that Titius mandated not so much on behalf of Titia, but because he wished to look after the matter himself.
item si maritus aduersus mandatorem ageret, an aliqua exceptione summoueatur? respondi nihil proponi, cur summouendus sit.
Also, if the husband should bring an action against the mandator, is he barred by any exception? I answered that nothing is presented to show why he should be barred.
§17.1.60.2Duobus quis mandauit negotiorum administrationem: quaesitum est, an unusquisque mandati iudicio in solidum teneatur.
Someone mandated the administration of his affairs to two persons.
respondi unumquemque pro solido conueniri debere, dummodo ab utroque non amplius debito exigatur.
The question was whether each of them is held liable for the whole in an action on mandate. I answered that each ought to be sued for the whole, provided that no more than the debt is exacted from both.
§17.1.60.3Si inter maritum et socerum id actum esset uel tacito intellectu, ut onus exhibendae uxoris ad maritum rediret praestante patre dotis usuras, nullam actionem superfore ad recipiendum quod negetur consumptum: quod si pater puellae exhibitionem mandasse se doceat, actionem mandati competere.
If it had been agreed between a husband and his father-in-law, even by tacit understanding, that the burden of maintaining the wife should fall back on the husband while the father paid the interest on the dowry, no action would remain to recover what is claimed not to have been consumed; but if the father of the girl should prove that he had mandated her maintenance, the action on mandate would lie.
§17.1.60.4Lucius Titius fratris filio commisit rerum suarum administrationem ita: Σείῳ τέκνῳ χαίρειν.
Lucius Titius entrusted the administration of his affairs to his brother's son in this way: "To my child Seius, greetings.
ἐγὼ μὲν κατὰ φύσιν εἶναι νομίζω τὸ ὑπὲρ πατρὸς καὶ τῶν τοῦ πατρὸς υἱῶν πραγματεύεσθαι δίχα τοῦ τινὰ ἐπιτροπικὸν αἰτεῖν.
I think it is natural to manage affairs on behalf of a father and the father's sons without anyone asking for a procuratorship.
εἰ δὲ δεῖ καὶ τοιούτου τινός, ἐπιτρέπω σοι περὶ πάντων τῶν ἐμῶν ὡς θέλεις πραγματεύεσθαι, εἴτε πωλεῖν θέλεις εἴτε ὑποτίθεσθαι εἴτε ἀγοράζειν εἴτε ὁτιοῦν πράττειν, ὡς κυρίῳ ὄντι τῶν ἐμῶν· ἐμοῦ πάντα κύρια τὰ ὑπὸ σοῦ γινόμενα ἡγουμένου καὶ μηδὲν ἀντιλέγοντός σοι πρὸς μη- δεμίαν πρᾶξιν. quaesitum est, si quid non administrandi animo, sed fraudulenter alienasset uel mandasset, an ualeret.
But if there is need of such a thing, I permit you to manage all my affairs as you wish, whether you wish to sell, to pledge, to buy, or to do anything whatsoever, as if you were the owner of my property; since I consider all things done by you as valid and make no objection against you regarding any transaction." It was asked: if he had alienated or mandated anything, not with the intention of administering, but fraudulently, whether it would be valid.
respondi eum, de quo quaereretur, plene quidem, sed quatenus res ex fide agenda esset, mandasse.
I answered that the person in question had indeed mandated fully, but only so far as the business was to be conducted in good faith.
item quaero, an, cum Seius magistratu functus debitor exstitisset, Lucius Titius eo nomine conueniri possit uel res eius obligatae essent propter uerba epistulae supra scripta.
I also ask: when Seius, having performed a magistracy, became a debtor, could Lucius Titius be sued on that account, or were his things bound because of the words of the letter written above?
respondi neque conueniri posse neque res obligatas esse.
I answered that he could not be sued, nor were his things bound.