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Justinian I · The Digest of Justinian §26.7.2.pr-26.7.2.1

Effects of Judgments Involving Tutors on Pupils

Passage 3837 of 9271 · Latin

Summary

It explains the principle that the action on a judgment is granted to or against the pupil rather than the tutor, and discusses the legal relief available to the tutor and his guarantors when security has been given.

[IDEM libro nono ad edictum. ] §26.7.2.prSi tutor condemnauit siue ipse condemnatus est, pupillo et in pupillum potius actio iudicati datur et maxime, si non se liti optulit, sed cum non posset uel propter absentiam pupilli uel propter infantiam auctor ei esse ad accipiendum iudicium.
[The same, in the ninth book on the Edict.] If a tutor has obtained judgment or has himself been condemned, the action on the judgment is granted to the pupil and against the pupil rather, and especially if he did not volunteer himself for the litigation, but when he could not, either on account of the absence of the pupil or on account of his infancy, act as authorizer to him for undertaking the trial.
et hoc etiam diuus Pius rescripsit et exinde multis rescriptis declaratum est in pupillum dandam actionem iudicati semper tutore condemnato, nisi abstineatur: tunc enim nec in tutorem nec in pupillum.
And this also the divine Pius wrote in a rescript, and from then on it has been declared in many rescripts that the action on the judgment is always to be granted against the pupil when the tutor is condemned, unless there is an abstention; for then it is granted neither against the tutor nor against the pupil.
nec pignora tutoris capienda esse saepe rescriptum est.
And it has often been written in rescripts that the pledges of the tutor are not to be taken.
§26.7.2.1Amplius Marcellus libro uicesimo primo digestorum scribit et si satisdedit tutor, mox abstinuit pupillus, fideiussoribus quoque eius debere subueniri: sed et si pupillus non abstinuit, quemadmodum ipsi, ita et fideiussoribus eius subueniri, maxime si pro absente pupillo uel pro infante satisdedit.
Furthermore, Marcellus writes in the twenty-first book of his Digests that even if the tutor gave security, and subsequently the pupil abstained, relief should also be given to his guarantors; but even if the pupil did not abstain, just as relief is given to the tutor himself, so also should it be given to his guarantors, especially if he gave security on behalf of an absent pupil or an infant.

Notes

  1. §26.7.2.prcondemnauit — The active verb "condemnare" in the context of Roman civil procedure means "to obtain a judgment against (the opponent)" (to win the case), contrasted here with the passive "condemnatus est" (to be condemned / to lose the case).
  2. §26.7.2.prauctor ei esse ad accipiendum iudicium — Meaning "to act as authorizer to him for undertaking the trial." Since an infant or an absent person could not personally become a party to a lawsuit (litis contestatio) even with the tutor's authorization, the tutor was forced to undertake the litigation directly.
  3. §26.7.2.prnisi abstineatur — An impersonal passive referring to the pupil's abstention (se abstinere) from the inheritance or the administration. If there is an abstention, the action on the judgment for the execution of debts cannot be brought against either the pupil or the tutor.
  4. §26.7.2.1quemadmodum ipsi, ita et fideiussoribus eius subueniri — An infinitive clause in indirect speech. The dative "ipsi" refers to the tutor himself who gave security, and "eius" is his genitive. Since the action is directed against the pupil when there is no abstention, the tutor himself is relieved, and consequently, his guarantors should also be relieved.

Cite this passage

Justinian I, The Digest of Justinian §26.7.2.pr-26.7.2.1. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:26.7.2.pr-26.7.2.1

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