Justinian I · The Digest of Justinian §26.7.41.pr

Exemption from Accounting and Neglect to Accuse Co-Tutors

Passage 3876 of 9271 · Latin

Summary

This section explains that if a testator forbids one insolvent co-tutor from rendering accounts, the other co-tutors who neglected to accuse him as suspected can still be sued for negligence, as the release from liability does not cover fraud or bad faith.

[IDEM libro septimo responsorum. ] §26.7.41.prQui plures tutores habuit, unum, qui soluendo non fuit, rationem actus sui uetuit reddere.

[THE SAME, in his Seventh Book of Opinions.] A person who had several tutors forbade one of them, who was insolvent, to render an account of his administration.

quoniam eius liberatio, quod ex tutela percepit aut dolo contraxit, non est relicta, contutores, qui suspectum facere neglexerunt, ex culpa recte conueniuntur: tutor enim legatarius ex culpa, quae testamento remissa est, non tenetur.

Since a release for what he received from the guardianship or contracted by fraud was not left to him by the will, the co-tutors, who neglected to accuse him as suspected, are rightly sued on the ground of negligence; for a tutor who is a legatee is not held liable for negligence that has been remitted by the will.

Notes

26.7.41.prQui plures tutores habuit — The subject "qui" can be interpreted either as the person (the father/testator) who appointed several tutors for his son, or as the ward himself who had several tutors. Since the appointment and release of tutors are typically done by the father's will, it practically refers to the testator.
26.7.41.prsoluendo non fuit — Meaning "was insolvent" or "was unable to pay". A negative formulation of the expression where the verb "esse" is accompanied by the dative of the gerund "soluendo" (for paying), indicating capacity or fitness.
26.7.41.prtutor legatarius — A tutor who was released from the duty of rendering an account by the will is treated similarly to a legatee (legatarius). While they are not held liable within the scope of the remitted liability (negligence/culpa), they are not released from liability for fraud (dolus) or the return of what was actually acquired from the guardianship.

Cite this passage

Justinian I, The Digest of Justinian §26.7.41.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:26.7.41.pr

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