[ULPIANUS libro quadragesimo ad Sabinum. ] §26.8.5.prPupillus obligari tutori eo auctore non potest.
[ULPIANUS, in the fortieth book of his Commentary on Sabinus.] A ward cannot be obligated to his guardian with that guardian's own authority.
plane si plures sint tutores, quorum unius auctoritas sufficit, dicendum est altero auctore pupillum ei posse obligari, siue mutuam pecuniam ei det siue stipuletur ab eo.
Clearly, if there are several guardians, the authority of one of whom is sufficient, it must be said that with the authority of another guardian, the ward can be obligated to him, whether he gives money as a loan to the ward or stipulates for it from him.
sed et cum solus sit tutor mutuam pecuniam pupillo dederit uel ab eo stipuletur, non erit obligatus tutori: naturaliter tamen obligabitur in quantum locupletior factus est: nam in pupillum non tantum tutori, uerum cuiuis actionem in quantum locupletior factus est dandam diuus Pius rescripsit.
But even when there is a sole guardian and he has given money as a loan to the ward or stipulates for it from him, the ward will not be obligated to the guardian; nevertheless, he will be naturally obligated to the extent that he has been enriched. For the deified Pius replied by rescript that an action against a ward is to be granted not only to a guardian but to anyone whomsoever to the extent that the ward has been enriched.
§26.8.5.1Pupillus uendendo sine tutoris auctoritate non obligetur sed nec in emendo, nisi in quantum locupletior factus est.
A ward by selling without the authority of the guardian is not obligated, nor indeed in buying, except to the extent that he has been enriched.
§26.8.5.2Item ipse tutor et emptoris et uenditoris officio fungi non potest: sed enim si contutorem habeat, cuius auctoritas sufficit, procul dubio emere potest.
Likewise, the guardian himself cannot perform the office of both buyer and seller; but indeed, if he has a co-guardian whose authority is sufficient, he can without doubt buy.
sed si mala fide emptio intercesserit, nullius erit momenti ideoque nec usucapere potest.
But if the purchase was made in bad faith, it will be of no effect, and therefore he cannot even acquire by usucapion.
sane si suae aetatis factus comproba uerit emptionem, contractus ualet.
Of course, if on becoming of age he has approved the purchase, the contract is valid.
§26.8.5.3Sed si per interpositam personam rem pupilli emerit, in ea causa est, ut emptio nullius momenti sit, quia non bona fide uidetur rem gessisse: et ita est rescriptum a diuo Seuero et Antonino.
But if he has bought the property of the ward through an intermediary, the situation is such that the purchase is of no effect, because he is not deemed to have conducted the transaction in good faith; and it was so replied by rescript by the deified Severus and Antoninus.
§26.8.5.4Sane si ipse quidem emit palam, dedit autem nomen non mala fide sed simpliciter, ut solent honestiores non pati nomina sua instrumentis inscribi, ualet emptio: quod si callide, idem erit ac si per interpositam personam emisset.
To be sure, if he himself bought openly, but gave another's name not in bad faith but simply, as more honorable persons are accustomed not to allow their names to be written in instruments, the purchase is valid; but if he did so craftily, it will be the same as if he had bought through an intermediary.
§26.8.5.5Sed et si creditor pupilli distrahat, aeque emere bona fide poterit.
But even if a creditor of the ward sells the property, the guardian can equally buy it in good faith.
§26.8.5.6Si filius tutoris uel quae alia persona iuri eius subiecta emerit, idem erit atque si ipse emisset.
If a son of the guardian or any other person subject to his power has bought it, it will be the same as if he himself had bought it.