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Justinian I · The Digest of Justinian §26.1.7.pr

Father's Liability and Acknowledgment of Son's Guardianship

Passage 3735 of 9271 · Latin

Summary

This section explains that when a son in power is appointed as a guardian, the father's liability depends on whether he acknowledged the guardianship (liability in solidum versus up to the peculium), and defines what actions or written statements constitute such acknowledgment.

[ULPIANUS libro secundo disputationum. ] §26.1.7.prSi filius familias tutor a praetore datus sit, si quidem pater tutelam agnouit, in solidum debet teneri, si non adgnouit, dumtaxat de peculio.
[ULPIANUS, On Disputations, Book 2.] If a filius familias is given as a guardian by the praetor, if indeed the father has acknowledged the guardianship, he must be held liable in solidum; if he has not acknowledged it, only to the extent of the peculium.
adgnouisse autem uidetur, siue gessit siue gerenti filio consensit siue omnino attigit tutelam.
Moreover, he is deemed to have acknowledged it, whether he administered it himself, or consented to his son who was administering it, or touched upon the guardianship in any way at all.
unde cum quidam filio scripsisset, ut diligenter tutelam gereret, 'cum scias', inquit, 'periculum ad nos pertinere', dixi hunc quoque uideri adgnouisse: plane si solum monuit filium, non uidetur agnita.
Hence, when a certain person had written to his son to administer the guardianship diligently, saying, "since you know that the risk pertains to us," I said that this person also was deemed to have acknowledged it. Obviously, if he only admonished his son, it is not deemed to have been acknowledged.

Notes

  1. 26.1.7.prsi quidem pater tutelam agnouit, in solidum debet teneri — The subject of the passive verb debet teneri is not explicitly stated, but the subject of the conditional clause, pater, continues as the nominative subject. It means that if the father acknowledges the guardianship performed by his son in power, the father himself is held liable in solidum (for the whole amount) for the obligations arising from it.
  2. 26.1.7.prcum scias ... periculum ad nos pertinere — The conjunction cum takes the subjunctive scias (second person singular present) to express a premise or cause ('since you know' / 'inasmuch as you know'). The phrase periculum ad nos pertinere is an accusative with infinitive construction (accusative subject periculum with infinitive pertinere), meaning that the risk or liability associated with the guardianship belongs to 'us' (the father/family). This expression shows that the father orders his son to act while knowing the liability falls on him, which constitutes 'acknowledgment'.

Cite this passage

Justinian I, The Digest of Justinian §26.1.7.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:26.1.7.pr

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