Humanitext Reader

Justinian I · The Digest of Justinian §26.7.36.pr

Division of Guardianship and Right to Set-Off

Passage 3871 of 9271 · Latin

Summary

Explains that even when guardianship is divided among tutors, equitable rights such as set-off are not hindered, because the division of guardianship is merely an internal administrative limit.

[IDEM libro tertio quaestionum. ] §26.7.36.prInter tutores diuisa tutela est: aequitas, quae merum ius compensationis inducit, propter officium et personam agentis tutoris non differtur: nam diuisio tutelae, quae non iuris, sed iurisdictionis est, modum administrationi facit et inter ipsos locum habet nec experiri cum pupillo uolentibus obstare debet.
[THE SAME, in his Third Book of Questions.] Where guardianship is divided among tutors, equity, which introduces the mere right of set-off, is not deferred on account of the office and person of the tutor bringing the action; for the division of guardianship, which is not of law but of jurisdiction, sets a limit to the administration and has effect among themselves, and ought not to stand in the way of those who wish to bring an action against the pupil.

Notes

  1. §26.7.36.prnon iuris, sed iurisdictionis — Indicates that the division is not based on substantive law (ius) but on jurisdictional authority (iurisdictio, i.e., the magistrate's or judge's order of distribution). This explains why an internal division of duties among tutors does not affect substantive legal relations (such as set-off) with third parties.
  2. §26.7.36.prexperiri cum pupillo uolentibus — The verb 'experiri' is used in the legal sense of 'to go to law' or 'to bring an action'. 'uolentibus' is the dative plural of the present participle 'uolens', serving as the complement of the verb 'obstare' (to stand in the way of). The entire phrase refers to third-party creditors wishing to bring a claim against the pupil.

Cite this passage

Justinian I, The Digest of Justinian §26.7.36.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:26.7.36.pr

Please note the AI-draft status of the translation and the date accessed.

Translation, notes and summary are AI-generated drafts, revised through reader feedback.