[ULPIANUS libro trigensimo sexto ad edictum. ] §27.4.3.prQuid ergo si plus in eum impendit, quam est in facultatibus? uideamus an possit hoc consequi.
[ULPIANUS libro trigensimo sexto ad edictum.] What then if he spent more on him than is in his assets? Let us see whether he can recover this.
et Labeo scripsit posse.
And Labeo wrote that he can.
sic tamen accipiendum est, si expedit pupillo ita tutelam administrari: ceterum si non expedit, dicendum est absolui pupillum oportere: neque enim in hoc administrantur tutelae, ut mergantur pupilli.
This, however, is to be accepted in this way: if it is expedient for the pupil that the tutelage be so administered. But if it is not expedient, it must be said that the pupil ought to be absolved; for tutelages are not administered for this purpose, that the pupils should be ruined.
iudex igitur, qui contrario iudicio cognoscit, utilitatem pupilli spectabit et an tutor ex officio sumptus fecerit.
Therefore, the judge who takes cognizance in the contrary action will look to the utility of the pupil and whether the tutor made the expenditures in accordance with his office.
§27.4.3.1Contrarium iudicium an ad hoc quoque competat, ut quis a pupillo exigat liberationem, uidendum est.
It must be seen whether the contrary action also lies for this purpose, that one may demand release from the pupil.
et nemo dixit in hoc agere quem contrario posse, ut tutelae iudicio liberetur, sed tantum de his, quae ei propter tutelam absunt.
And no one has said that anyone can sue in the contrary action for this, that he be released from the action of tutelage, but only for those things which are missing to him on account of the tutelage.
consequitur autem pecuniam, si quam de suo consumpsit, etiam cum usuris, sed uel trientibus, uel his quae in regione obseruantur, uel his quibus mutuatus est, si necesse habuit mutuari, ut pupillo ex iusta causa prorogaret, uel his a quibus pupillum liberauit, uel quibus caruit tutor, si nimium profuit pupillo pecuniam esse exsolutam.
Moreover, he recovers the money, if he spent any of his own, even with interest, but either at one-third, or at those rates which are customary in the region, or at those which he borrowed, if he had a necessity to borrow in order to grant an extension to the pupil for a just cause, or at those from which he released the pupil, or those which the tutor went without, if it was highly beneficial to the pupil that the money was paid off.
§27.4.3.2Plane si forte tutor aliquid pecuniae debuit faenerare, aliquid ipse pro pupillo soluit, nec ipse usuras consequitur nec pupillo praestabit.
Clearly, if by chance the tutor was obliged to lend out some money on interest, and he himself paid something on behalf of the pupil, he neither recovers interest himself nor will he pay it to the pupil.
§27.4.3.3Quare et si in usus suos conuertit, deinde aliquid impendit in rem pupillarem, quam impendit desinit uertisse et exinde usuras non praestabit.
Therefore, even if he converted to his own use and then spent something on the pupil's property, he ceases to have converted what he spent, and from then on he will not pay interest.
et si ante impendit in rem pupillarem, mox in usus suos uertit, non uidebitur uertisse quantitatem, quae concurrit cum quantitate sibi debita, ut eius summae non praestet usuras.
And if he first spent on the pupil's property and soon after converted to his own use, he will not be deemed to have converted the quantity which concurs with the quantity owed to him, so that he does not pay interest on that sum.
§27.4.3.4Usuras utrum tamdiu consequetur tutor quamdiu tutor est, an etiam post finitam tutelam, uideamus, an ex mora tantum.
Let us see whether the tutor will recover interest as long as he is tutor, or also after the tutelage is ended, or only from default.
et magis est, ut, quoad ei reddatur pecunia, consequatur: nec enim debet ei sterilis esse pecunia.
And it is more acceptable that he should recover it until the money is returned to him; for the money ought not to be sterile for him.
§27.4.3.5Si tamen fuit in substantia pupilli unde consequetur, dicendum est non oportere eum usuras a pupillo exigere.
If, however, there was in the pupil's estate from which he could recover, it must be said that he ought not to demand interest from the pupil.
§27.4.3.6Quid ergo, si de re pupillari non potuit sibi soluere, quia erat deposita ad praediorum comparationem? si quidem non postulauit a praetore, ut promatur pecunia uel hoc minus deponatur, sibi imputet: si uero hoc desiderauit nec impetrauit, dicendum est non deperire ei usuras in contrario iudicio.
What then if he could not pay himself from the pupil's property because it had been deposited for the purchase of estates? Indeed, if he did not request from the praetor that the money be brought out or that so much less be deposited, he must blame himself; but if he did desire this and did not obtain it, it must be said that the interest is not lost to him in the contrary action.
§27.4.3.7Sufficit tutori bene et diligenter negotia gessisse, etsi euentum aduersum habuit quod gestum est.
It is sufficient for the tutor to have managed the affairs well and diligently, even if what was done had an adverse outcome.
§27.4.3.8Iudicio contrario tutelae praestatur et id, quod in rem pupilli uersum ante tutelam uel post tutelam, si negotiis tutelae tempore gestis nexum probatur, et quod ante impensum est, siue pro tutore negotia gessit et postea tutor constitutus est, uel uentri erat curator: sed et si non pro tutore negotia gerebat, debet uenire quod ante impensum est: deducuntur enim in tutelae iudicium sumptus, quoscumque fecerit in rem pupilli, sic tamen, si ex bona fide fecit.
In the contrary action of tutelage, there is also provided that which was turned to the pupil's benefit before or after the tutelage, if it is proved to be connected with the affairs managed during the time of the tutelage; and what was spent beforehand, whether he managed the affairs in place of a tutor and was afterwards appointed tutor, or was a curator for an unborn child; but even if he did not manage the affairs in place of a tutor, what was spent beforehand ought to be included. For there are brought into the action of tutelage whatever expenses he made for the benefit of the pupil, provided, however, that he made them in good faith.
H §27.4.3.9anc actionem perpetuam esse palam est, et heredi et in heredem dari ceterosque successores et ad quos ea res pertinet et in eos.
H anc actionem perpetuam esse palam est, et heredi et in heredem dari ceterosque successores et ad quos ea res pertinet et in eos.