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Justinian I · The Digest of Justinian §27.7.1.pr-27.7.1.1

Obligations of the Tutor's Heir to Finish Business and Restore Property

Passage 4043 of 9271 · Latin

Summary

It is explained that the heir of a tutor, though not a tutor themselves, is obliged to complete the unfinished business of the deceased and to restore property, being liable to an analogous action if they take things left with the pupil.

[POMPONIUS libro septimo decimo ad Sabinum. ] §27.7.1.prQuamuis heres tutoris tutor non est, tamen ea quae per defunctum inchoata sunt per heredem, si legitimae aetatis et masculus sit, explicari debent: in quibus dolus eius admitti potest.
[POMPONIUS, in the seventeenth book on Sabinus.] Although the heir of a tutor is not himself a tutor, nevertheless, those matters which were commenced by the deceased must be wound up by the heir, provided that he is of lawful age and a male; in which matters his own fraud can be admitted.
§27.7.1.1Quod penes tutorem fuit, heres quoque eius reddere debet: quod apud pupillum is reliquerit si heres capit, non quidem crimine caret, sed extra tutelam est et utili actione hoc reddere compellitur.
What was in the possession of the tutor, his heir also must restore; but if the heir takes what the tutor had left with the pupil, he is indeed not free from guilt, but this is outside the scope of guardianship, and he is compelled to restore it by an analogous action.

Notes

  1. 27.7.1.prexplicari — Meaning "to be wound up", "untangled", or "settled". In contrast to the preceding "inchoata sunt" (were commenced), it indicates that the heir is under an obligation to bring the started transactions to completion.
  2. 27.7.1.prdolus eius — "eius" refers to the heir (heres) of the tutor. It indicates that the fraud (dolus) of the heir themselves, rather than that of the deceased tutor, can be admitted as a ground for liability.
  3. 27.7.1.1extra tutelam est — "It is outside the scope of guardianship." Because the act of the heir illegally taking property left with the pupil does not arise from the administration of the guardianship itself, it does not fall under the direct action on guardianship (actio tutelae), but must be addressed via an analogous action (actio utilis).

Cite this passage

Justinian I, The Digest of Justinian §27.7.1.pr-27.7.1.1. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:27.7.1.pr-27.7.1.1

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