[ULPIANUS libro trigesimo sexto ad edictum. ] §27.4.1.prContrariam tutelae actionem praetor proposuit induxitque in usum, ut facilius tutores ad administrationem accederent scientes pupillum quoque sibi obligatum fore ex sua administratione.
[ULPIANUS, On the Edict, Book 36] The praetor proposed the counter-action of guardianship and introduced it into practice, so that guardians might more readily enter upon administration, knowing that the ward also would be obligated to them from their administration.
quamquam enim sine tutoris auctoritate pupilli non obligentur nec in rem suam tutor obligare pupillum possit, attamen receptum est, ut tutori suo pupillus sine tutoris auctoritate ciuiliter obligetur ex administratione scilicet.
For although without the guardian's authority wards are not obligated, nor can a guardian obligate a ward for his own benefit, nevertheless it has been accepted that a ward is civilly obligated to his guardian without the guardian's authority, namely, from the administration.
etenim prouocandi fuerant tutores, ut promptius de suo aliquid pro pupillis impendant, dum sciunt se recepturos id quod impenderint. H
Indeed, guardians had to be encouraged to spend something of their own more promptly on behalf of the wards, as long as they know they will recover what they have spent.
§27.4.1.1aec actio non solum tutori, uerum etiam ei, qui pro tutore negotia gessit, competere debet.
This action ought to be available not only to a guardian, but also to one who has managed business in place of a guardian.
§27.4.1.2Sed et si curator sit uel pupilli uel adulescentis uel furiosi uel prodigi, dicendum est etiam his contrarium dandum.
But even if one is a curator of a ward, a youth, an insane person, or a prodigal, it must be said that the counter-action should also be granted to them.
idem in curatore quoque uentris probandum est.
The same is to be approved also in the case of a curator of an unborn child.
quae sententia Sabini fuit existimantis ceteris quoque curatoribus ex isdem causis dandum contrarium iudicium.
This was the opinion of Sabinus, who thought that the counter-action should be granted to other curators as well for the same reasons.
§27.4.1.3Finito autem officio hanc actionem competere dicemus tutori: ceterum quamdiu durat, nondum competit.
However, we shall say that this action is available to the guardian once his office has ended; but as long as it lasts, it is not yet available.
sed si pro tutore negotia gessit uel etiam curam administrauit, locus erit iudicio etiam statim, quia hoc casu in ipsum quoque statim actio competit.
But if he managed business in place of a guardian or even administered a curatorship, there will be room for the action even immediately, because in this case an action is also available immediately against him.
§27.4.1.4Praeterea si tutelae iudicio quis conuenietur, reputare potest id quod in rem pupilli impendit: sic erit arbitrii eius, utrum compensare an petere uelit sumptus.
Moreover, if anyone is sued in an action of guardianship, he can deduct what he has spent for the benefit of the ward: thus it will be of his own choice whether he wishes to set off or to claim the expenses.
quid ergo, si iudex compensationis eius rationem non habuit, an contrario iudicio experiri possit? et utique potest: sed si reprobata est haec reputatio et adquieuit, non debet iudex contrario iudicio id sarcire.
What then, if the judge took no account of this set-off, can he sue by the counter-action? And indeed he can; but if this deduction was rejected and he acquiesced, the judge ought not to make it good in the counter-action.
§27.4.1.5An in hoc iudicio non tantum quae pro pupillo uel in rem eius impensa sunt ueniant, uerum etiam ea quoque, quae debebantur alias tutori, ut puta a patre pupilli si quid debitum fuit, quaeritur.
The question is raised whether in this trial there should come not only what was spent on behalf of the ward or for his benefit, but also those things which were otherwise owed to the guardian—for instance, if something was owed by the father of the ward.
et magis puto, cum integra sit actio tutori, non esse in contrarium iudicium deducendum.
And I rather think that, since the guardian's action remains intact, it should not be brought into the counter-trial.
§27.4.1.6Quid tamen si ideo exspectauit, quia tutor erat et ideo non exegit? uideamus, an contrario iudicio tutelae indemnitatem consequatur.
What, however, if he waited for this reason, because he was a guardian, and therefore did not enforce the claim? Let us see whether he may obtain indemnity for the guardianship in the counter-trial.
quod magis probandum est: nam sicuti quodcumque aliud gessit pro utilitate pupilli, id contrario iudicio consequetur, ita etiam id quod sibi debetur consequi debet uel eius securitatem.
This is rather to be approved; for just as he will obtain by the counter-trial whatever else he did for the benefit of the ward, so also he ought to obtain what is owed to him or security for it.
§27.4.1.7Ego et si ex causa, quae tempore finitur, obligatio aliqua fuit, tutelae contrarium iudicium esse ei opinor.
I believe that even if there was some obligation arising from a cause that is limited by time, the counter-trial of guardianship is available to him.
H §27.4.1.8anc actionem dandam placet et si tutelae iudicio non agatur: etenim nonnumquam pupillus idcirco agere tutelae non uult, quia nihil ei debetur, immo plus in eum impensum est, quam quod ei abest, nec impediendus est tutor contrario agere.
It is agreed that this action should be granted even if no action is brought in the trial of guardianship; for sometimes a ward does not wish to sue for guardianship because nothing is owed to him, but rather more has been spent on him than what he is missing, nor should the guardian be prevented from bringing the counter-action.