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Justinian I · The Digest of Justinian §26.8.4.pr

Invalidity of Authorization by Non-Managing or Removed Guardians

Passage 3900 of 9271 · Latin

Summary

The author discusses that the authority of a guardian who does not manage the guardianship or has been removed is not held valid by the praetor, and buying from a ward under such authority does not transfer ownership, even if multiple guardians exist.

[POMPONIUS libro septimo decimo ad Sabinum. ] §26.8.4.prEtsi pluribus datis tutoribus unius auctoritas sufficiat, tamen si tutor auctoretur, cui administratio tutelae concessa non est, id ratum a praetore haberi non debet.
[POMPONIUS, in the seventeenth book of his Commentary on Sabinus.] Even if the authority of one guardian is sufficient when several have been appointed, nevertheless, if a guardian to whom the administration of the guardianship has not been granted interposes his authority, this ought not to be held valid by the praetor.
et ideo puto uerius esse, quod Ofilio placebat, si eo tutore auctore, qui tutelam non gerat, emam a pupillo sciens alium eius tutelam gerere, dominum me non posse fieri: item si eo auctore emam, qui a tutela fuerit remotus: nec enim id ratum haberi.
And therefore I think that the opinion which pleased Ofilius is more correct, namely, that if, with that guardian interposing his authority who does not manage the guardianship, I buy from a ward, knowing that another manages his guardianship, I cannot become the owner; likewise if I buy with the authority of one who has been removed from the guardianship, for indeed this is not held valid.

Notes

  1. §26.8.4.preo tutore auctore — An ablative absolute consisting of two nouns (tutore and auctore) without a participle, meaning "with that tutor acting as the authorizer."
  2. §26.8.4.prdominum me non posse fieri — An accusative with infinitive (AcI) clause that functions as the subordinate clause governed by `puto` (with `uerius esse`) and explains the concrete content of the relative clause `quod Ofilio placebat`.
  3. §26.8.4.prnec enim id ratum haberi — An accusative with infinitive clause at the end of the sentence. The passive infinitive `haberi` is used because the indirect speech governed by the preceding `puto` continues. The subject is `id`, meaning "for indeed (I think) this is not held valid."

Cite this passage

Justinian I, The Digest of Justinian §26.8.4.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:26.8.4.pr

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