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Justinian I · The Digest of Justinian §26.8.1.pr-26.8.1.1

Guardian Authorization in Self-Interest and Validity Requirements

Passage 3897 of 9271 · Latin

Summary

This section discusses the general rule prohibiting guardians from authorizing transactions in their own interest, along with exceptions such as entering upon a debtor's inheritance, and explains that mere physical presence under duress or unconsciousness does not constitute a valid authorization.

[ULPIANUS libro primo ad Sabinum. ] §26.8.1.prQuamquam regula sit iuris ciuilis in rem suam auctorem tutorem fieri non posse, tamen potest tutor proprii sui debitoris hereditatem adeunti pupillo auctoritatem accommodare, quamuis per hoc debitor eius efficiatur: prima enim ratio auctoritatis ea est, ut heres fiat, per consequentias contingit, ut debitum subeat.
[ULPIANUS in the first book of his Commentary on Sabinus.] Although there is a rule of civil law that a guardian cannot become an authorizer on his own behalf, nevertheless a guardian can grant authority to a pupillus who is entering upon the inheritance of the guardian's own debtor, even though through this the pupillus becomes his debtor; for the primary purpose of the authority is that the pupillus may become the heir, and it happens only as a consequence that he undertakes the debt.
se tamen auctore ab eo stipulari non potest.
However, with himself authorizing, he cannot stipulate from the pupillus.
et cum quidam auctoritatem accomodaret pupillae suae, ut seruo suo stipulanti sponderet, diuus Pius Antoninus rescripsit iure pupillam non teneri, sed in quantum locupletior facta est, dandam actionem.
And when a certain person granted authority to his female pupillus to make a promise to his own slave who was stipulating, the divine Pius Antoninus wrote in a rescript that the female pupillus was not bound by law, but that an action should be granted to the extent that she was enriched.
sed si auctor fiat, ut filio suo quid tradatur, nulla erit auctoritas: euidenter enim sua auctoritate rem adquirit.
But if he should authorize that something be delivered to his own son, the authority will be null; for he clearly acquires the thing through his own authority.
§26.8.1.1Tutor si inuitus retentus sit per uim, non ualet quod agitur: neque enim praesentia corporis sufficit ad auctoritatem, ut si somno aut morbo comitiali occupatus tacuisset.
If a guardian is detained by force against his will, what is done is not valid; for the mere presence of his body does not suffice for authority, just as if he had remained silent while overcome by sleep or epilepsy.

Notes

  1. §26.8.1.prin rem suam auctorem tutorem fieri non posse — An accusative-with-infinitive clause functioning as an appositive to the noun `regula` (rule of civil law). The phrase `in rem suam` means "for his own benefit" or "on his own behalf," representing the fundamental rule of classical law that prohibits a guardian from authorizing transactions where a conflict of interest exists.
  2. §26.8.1.prse tamen auctore ab eo stipulari non potest — The phrase `se auctore` is an ablative absolute construction of the noun-noun type, meaning "he himself being the authorizer." `ab eo` ("from him") refers to the pupillus, and `stipulari` refers to the act of securing a promise (obligation) by questioning. This denotes that a guardian cannot extract a direct promise from the pupillus to himself while simultaneously acting as the authorizing authority.
  3. §26.8.1.1ut si somno aut morbo comitiali occupatus tacuisset — A hypothetical comparative clause introduced by `ut si` ("as if" or "as in the case where"). The verb `tacuisset` is in the pluperfect subjunctive, presenting a past counterfactual or illustrative scenario. It demonstrates that mere physical presence (`praesentia corporis`) without conscious volition—such as silence due to sleep or an epileptic fit (`morbus comitialis`)—does not constitute legally valid authorization, mirroring the case of a guardian detained by force.

Cite this passage

Justinian I, The Digest of Justinian §26.8.1.pr-26.8.1.1. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:26.8.1.pr-26.8.1.1

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