Humanitext Reader

Justinian I · The Digest of Justinian §27.3.4.pr-27.3.4.3

Termination of Tutelage and Grounds for Legal Actions

Passage 3998 of 9271 · Latin

Summary

Discusses the termination of guardianship, the liability of an emancipated son administering guardianship, the effect of an action brought by a pupil, and the availability of the action for the management of affairs against a curator.

[PAULUS libro octauo ad Sabinum. ] §27.3.4.prNisi finita tutela sit, tutelae agi non potest: finitur autem non solum pubertate, sed etiam morte tutoris uel pupilli.
[PAULUS in his eighth book on Sabinus] Unless guardianship is ended, an action for guardianship cannot be brought; but it is ended not only by puberty, but also by the death of the tutor or the pupil.
§27.3.4.1Filium familias emancipatum, si tutelam administret, etiam directo teneri Iulianus putat.
Iulianus thinks that an emancipated son-of-the-family, if he administers a guardianship, is also held liable by the direct action.
§27.3.4.2Si adhuc impubes tutelae agat, nihil consumitur.
If a person who is still under puberty brings an action for guardianship, nothing is consumed.
§27.3.4.3Cum furiosi curatore non tutelae, sed negotiorum gestorum actio est: quae competit etiam dum negotia gerit, quia non idem in hac actione, quod in tutelae actione, dum impubes est is cuius tutela geritur, constitutum est.
Against the curator of an insane person, there is not an action for guardianship, but for the management of affairs; which is available even while he is managing the affairs, because the same rule is not established in this action as in the action for guardianship while the person whose guardianship is administered is still under puberty.

Notes

  1. §27.3.4.prtutelae — "tutelae" is a genitive indicating the type of action (the action for guardianship, "actio tutelae") in the impersonal passive expression "agi... potest". It derives from the active expression "tutelae agere".
  2. §27.3.4.2nihil consumitur — Refers to the "consumption" (extinguishment) of a right of action by joinder of issue (litis contestatio). If a person under puberty brings the action without proper authorization, the litigation is ineffective and the right of action is not consumed.
  3. §27.3.4.3non idem in hac actione, quod in tutelae actione ... constitutum est — The structure is "non idem... quod... constitutum est" (the same rule as is established in... is not established in this action). It explains the difference in rules: while the action for guardianship cannot be brought while the pupil is still under puberty, the action for the management of affairs can be brought even during the management.

Cite this passage

Justinian I, The Digest of Justinian §27.3.4.pr-27.3.4.3. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:27.3.4.pr-27.3.4.3

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