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Justinian I · The Digest of Justinian §27.4.4.pr

Status of Removed Tutors and Counter-Action for Expenses

Passage 4023 of 9271 · Latin

Summary

Julianus discusses the legal status of a tutor who has been removed, explaining that they are treated as if the tutelage had ended normally and, while subject to actions, retain the right to recover their expenditures for the pupil through the contrary action.

[IULIANUS libro uicesimo primo digestorum. ] §27.4.4.prA tutela remotus eo loco haberi debet, quo esset finita tutela, et sicut actiones patitur perinde ac si pupillus pubes factus esset, ita contrario iudicio, si quid ei aberit, persequi debebit: nihil enim prohibet suspectum tutorem esse, quamuis complura in rem pupilli impenderit, quae eum amittere non oportet.
[JULIANUS, Digest, book 21] A person removed from tutelage ought to be held in the same position as if the tutelage had been ended; and just as he undergoes actions exactly as if the pupil had reached puberty, so he must seek to recover by the contrary action if anything is missing to him. For nothing prevents a person from being a suspected tutor, even though he has spent many things for the benefit of the pupil's estate, which he ought not to lose.

Notes

  1. 27.4.4.preo loco haberi debet, quo esset finita tutela — An expression indicating 'the same position or situation as if the tutelage had been ended.' Here quo functions as a relative adverb, and esset finita is in the pluperfect subjunctive to denote a hypothetical comparison.
  2. 27.4.4.prperinde ac si pupillus pubes factus esset — A conditional clause expressing a contrary-to-fact assumption, meaning 'just as if the pupil had reached puberty.' perinde ac si is accompanied by the pluperfect subjunctive factus esset, hypothesizing a situation where the pupil has not actually reached puberty.
  3. 27.4.4.prnihil enim prohibet suspectum tutorem esse — The subject of prohibet is formally impersonal (or the following accusative with infinitive clause), meaning 'nothing prevents him from being a suspected tutor.' This states the logic that being removed as a tutor under suspicion is compatible with having the right to recover through the contrary action the expenses legitimately made for the pupil's benefit.
  4. 27.4.4.prquae eum amittere non oportet — The antecedent of the relative pronoun quae (neuter plural accusative) is complura. oportet is an impersonal verb taking eum amittere (accusative with infinitive: 'that he should lose') as its subject.

Cite this passage

Justinian I, The Digest of Justinian §27.4.4.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:27.4.4.pr

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