[IDEM libro trigesimo sexto ad edictum. ] §26.7.9.prQuotiens tutor pecuniam pupillarem faenori dat, stipulatio hoc ordine facienda est.
[The same, in the thirty-sixth book on the Edict.] Whenever a tutor lends pupilary money at interest, the stipulation must be made in this order.
stipulari enim debet aut pupillus aut seruus pupilli: quod si neque pupillus eius aetatis erit, ut stipulari possit, neque seruum habebit, tunc ipse tutor quiue in eius potestate erit, quo casu Iulianus saepissime scripsit utilem actionem pupillo dandam.
For either the pupil or a slave of the pupil ought to stipulate; but if the pupil is not of such an age that he can stipulate, and has no slave, then the tutor himself, or someone in his power, must do so, in which case Julian wrote very often that a useful action should be given to the pupil.
sed et si absens sit pupillus, oportere tutorem suo nomine stipulari nequaquam ambigendum est.
But even if the pupil is absent, there is no doubt at all that the tutor ought to stipulate in his own name.
§26.7.9.1Si pater familias eum, pro quo fideiussit, tutorem dederit filio suo, officio tutoris conuenit, ut, cum dies pecuniae praeterierit, creditori debitum soluat: et ideo cessante eo si pupillus suae tutelae factus soluerit ex causa fideiussoria, non solum mandati, sed etiam tutelae agere poterit: hoc enim ei imputatur, cur pro se non soluerit.
If a paterfamilias has appointed as tutor to his son a person for whom he himself had stood surety, it belongs to the duty of the tutor to pay the debt to the creditor when the day for the money has passed; and therefore, if, upon his failing to do so, the pupil, having become independent, has paid on account of the suretyship, he will be able to bring not only the action of mandate but also that of tutelage; for this is imputed to him, namely, why he did not pay on his own behalf.
quod si in diem debitor fuit iste tutor, quibusdam uidetur non uenire in tutelae iudicium, si modo is dies post tutelam finitam superuenit: quod si dies adhuc durante tutela uenit, putant omnimodo deuolui in tutelae iudicium.
But if this tutor was a debtor for a certain day, it seems to some that this does not come into the judgment of tutelage, provided that this day arrives after the tutelage is ended; but if the day comes while the tutelage is still lasting, they think it is altogether devolved into the judgment of tutelage.
ego et hoc et superius ita uerum puto, si facultatibus labi tutor coepit: ceterum si idoneus tutor fuit, nihil uenire in tutelae iudicio.
I think both this and the former are true only if the tutor has begun to fall into decay in his means; but if the tutor was solvent, nothing comes into the judgment of tutelage.
nec quisquam putet nullum effectum hoc habere: namque si quis dixerit in tutelae iudicium deuolui, et priuilegio locus est et fideiussores tenebuntur, si rem saluam fore cautum est.
Nor should anyone think that this has no effect; for if anyone says that it is devolved into the judgment of tutelage, there is also room for a privilege, and the sureties will be held liable if security has been given that the property would be safe.
§26.7.9.2Item si temporali actione fuit obligatus tutor, dicendum est locum esse tutelae iudicio, ut perpetua actio sit.
Likewise, if the tutor was bound by a temporary action, it must be said that there is room for the judgment of tutelage, so that the action may be perpetual.
§26.7.9.3Et generaliter quod aduersus alium praestare debuit pupillo suo, id aduersus se quoque praestare debet, fortassis et plus: aduersus alios enim experiri sine actione non potuit, aduersus se potuit.
And generally, what he ought to have performed to his pupil against another, that he ought also to perform against himself, and perhaps even more; for against others he could not take legal steps without an action, but against himself he could.
§26.7.9.4Sed si sub usuris grauioribus patri pupilli pecuniam debuit quam sint pupillares, uidendum est, an ei aliquid imputetur.
But if he owed money to the father of the pupil under higher interest than the pupilary rate, it must be seen whether anything is imputed to him.
et si quidem soluit, nihil est quod ei imputetur: potuit enim soluere nec onerare se usuris: si uero non soluit, usuras cogendus est agnoscere, quas a se exigere debuit.
And indeed, if he has paid, there is nothing to be imputed to him; for he was able to pay and not burden himself with interest; but if he has not paid, he must be compelled to acknowledge the interest which he ought to have demanded from himself.
§26.7.9.5Sicut autem soluere tutor quod debet, ita et exigere quod sibi debetur potest, si creditor fuit patris pupilli: nam et sibi soluere potest, si modo fuit pecunia unde soluat, et si usurae fuerunt grauiores quae ei debebantur, releuabitur eis pupillus, quia tutor se potuit liberare, sicut aliis quoque soluere et potuit et debuit.
Moreover, just as a tutor ought to pay what he owes, so also he can demand what is owed to himself, if he was a creditor of the father of the pupil; for he can also pay himself, provided there was money from which he might pay, and if the interest owed to him was higher, the pupil will be relieved from it, because the tutor was able to free himself, just as he both could and ought to have paid others as well.
§26.7.9.6Nec utique necesse habet, si conueniatur, per iudicem soluere, idcircoque si mala causa pupillaris est, denuntiare sibi uerum debet.
Nor indeed is he obliged, if he is sued, to pay through a judge, and therefore if the pupil's cause is bad, he ought to declare the truth to himself.
denique imperator Antoninus cum patre etiam honoraria eos imputare pupillo prohibuit, si superuacaneam litem instituissent, cum conuenirentur a uero creditore: nec enim prohibentur tutores bonam fidem agnoscere.
Finally, the Emperor Antoninus prohibited them from imputing even court fees to the pupil along with the father, if they had instituted a superfluous lawsuit when they were sued by a true creditor; for tutors are not prohibited from acknowledging good faith.
§26.7.9.7Non tantum autem sibi soluere tutor, uerum etiam sibi creditam pecuniam scribere potest, ut Marcellus libro octauo digestorum scribsit, seque mutua pecunia poterit obligare sibi mutuam proscribendo.
But a tutor can not only pay himself, but can also enter money lent to himself, as Marcellus wrote in the eighth book of the Digests, and he will be able to bind himself by a loan of money by writing down a loan to himself.
§26.7.9.8Constat eum, qui ad augmentum datur, ut puta ad bona materna quae postea accesserunt uel ad quid aliud augmentum, administrare bona pristina non solere.
It is established that he who is appointed for an addition, as, for example, for maternal property which accrued afterwards, or for any other addition, is not accustomed to administer the former property.
si autem suspectum facere priorem tutorem supersedit uel satis ab eo exigere, plectetur.
But if he has neglected to accuse the prior tutor as suspect or to demand sufficient security from him, he shall be punished.
§26.7.9.9Per contrarium autem qui datus est simpliciter tutor pupillo uel curator, si quid postea augmenti accesserit, periculo tenetur, quamuis soleat ad augmentum dari curator: quae res non facit, ut ipsa augmenta non pertineant ad curam priorum, ad quos omnis utilitas pupillorum debet pertinere.
On the contrary, however, he who is appointed simply as tutor or curator to a pupil is held liable for the risk if any addition should accrue afterwards, although a curator is accustomed to be appointed for an addition; which fact does not mean that the additions themselves do not belong to the care of the prior ones, to whom all utility of the pupils ought to belong.
siue igitur datus est, communicatur periculum cum prioribus, siue datus non est, tenetur administrationis necessitate is qui antea erat datus.
Therefore, whether one is appointed, the risk is shared with the prior ones, or if one is not appointed, he who had been appointed before is held bound by the necessity of administration.