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Justinian I · The Digest of Justinian §26.10.7.pr-26.10.7.3

Standing to Accuse Guardians: Fault and Non-Appearance

Passage 3934 of 9271 · Latin

Summary

This chunk explains the different rights of minors and adolescents to accuse their guardians, states that gross negligence is a ground for removal, and outlines procedural remedies against non-appearing guardians.

[ULPIANUS libro primo de omnibus tribunalibus. ] §26.10.7.prImpuberibus quidem non permittitur suspectos facere: adulescentibus plane uolentibus suspectos facere curatores suos permittitur, dummodo ex consilio necessariorum id faciant.
[ULPIAN, On All Tribunals, Book 1.] To minors indeed it is not permitted to accuse their tutors as suspect; to adolescents indeed, if they wish, it is clearly permitted to accuse their curators as suspect, provided they do so on the advice of their relatives.
§26.10.7.1Si fraus non sit admissa, sed lata neglegentia, quia ista prope fraudem accedit, remoueri hunc quasi suspectum oportet.
If fraud has not been committed, but gross negligence, because the latter comes close to fraud, this person must be removed as if he were suspect.
§26.10.7.2Praeterea accesserunt quaedam species ex epistula imperatoris nostri et diui Seueri ad Atrium Clonium: nam aduersus eos, qui, ne alimenta decernantur, sui copiam perseuerant non facere, ut suis rebus careant praecipitur reique seruandae causa pupillus in possessionem mittatur eius, qui suspectus sententia sua factus est, quaeque mora deteriora futura sunt curatore dato distrahi iubentur.
Furthermore, certain cases have been added from the letter of our Emperor and the divine Severus to Atrius Clonius: for against those who persist in not making themselves available, lest maintenance be decreed, it is ordered that they be deprived of their property, and for the sake of preserving the property, the pupil is to be put into possession of the property of him who has been made suspect by his own conduct, and those things which are likely to deteriorate by delay are ordered to be sold after a curator has been appointed.
§26.10.7.3Item si quis tutor datus non compareat, solet edictis euocari, nouissimeque si copiam sui non fecerit, ut suspectus remoueri ob hoc ipsum, quod copiam sui non fecit.
Likewise, if anyone who has been appointed tutor does not appear, he is customarily summoned by edicts, and finally, if he does not make himself available, he is removed as suspect for this very reason, that he did not make himself available.
quod et perraro et diligenti habita inquisitione faciendum est.
This, however, must be done very rarely and only after a diligent inquiry has been held.

Notes

  1. §26.10.7.pradulescentibus plane uolentibus — adulescentibus is the dative object of the impersonal verb permittitur. The present participle uolentibus functions as a conditional adjunct ("if they wish").
  2. §26.10.7.2sui copiam ... non facere — The phrase copiam sui facere (literally "to make abundance of oneself") is a legal idiom meaning "to make oneself available" or "to appear in court."
  3. §26.10.7.2sententia sua — The ablative phrase sententia sua can be interpreted either as (1) "by his own conduct/attitude" (i.e. refusing to appear) or (2) "by a decree (prompted by his own conduct)." In either case, it means that his refusal to appear directly leads to his being deemed suspect.
  4. §26.10.7.3quod ... faciendum est — The relative pronoun quod at the beginning of the sentence refers back to the entire preceding clause (the process of removal due to non-appearance). diligenti habita inquisitione is an ablative absolute indicating a strict procedural safeguard.

Cite this passage

Justinian I, The Digest of Justinian §26.10.7.pr-26.10.7.3. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:26.10.7.pr-26.10.7.3

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