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Justinian I · The Digest of Justinian §27.9.1.pr-27.9.1.4

Prohibition of Alienation of Minors' Estates by Tutors

Passage 4060 of 9271 · Latin

Summary

Discusses the prohibition of the alienation of rural or suburban estates of minors by tutors and curators under the Oratio of Emperor Severus, including the procedure for exceptions and its application to properties meant for sale or purchased by minors.

[ULPIANUS libro trigesimo quinto ad edictum. ] §27.9.1.prImperatoris Seueri oratione prohibiti sunt tutores et curatores praedia rustica uel suburbana distrahere.
[ULPIAN, in the thirty-fifth book on the Edict.] By the speech of the Emperor Severus, tutors and curators were forbidden to alienate rural or suburban estates.
§27.9.1.1Quae oratio in senatu recitata est Tertullo et Clemente consulibus idibus Iuniis et sunt uerba eius huiusmodi: ' §27.9.1.2Praeterea, patres conscripti, interdicam tutoribus et curatoribus, ne praedia rustica uel suburbana distrahant, nisi ut id fieret, parentes testamento uel codicillis cauerint.
This speech was read in the Senate on the Ides of June, during the consulship of Tertullus and Clemens, and its words are as follows: "Furthermore, conscript fathers, I shall forbid tutors and curators to alienate rural or suburban estates, unless the parents have provided in a will or codicil that this should be done.
quod si forte aes alienum tantum erit, ut ex rebus ceteris non possit exsolui, tunc praetor urbanus uir clarissimus adeatur, qui pro sua religione aestimet, quae possunt alienari obligariue debeant, manente pupillo actione, si postea potuerit probari obreptum esse praetori.
If, however, there should happen to be so much debt that it cannot be discharged from the rest of the property, then the urban praetor, a most distinguished man, must be approached, who, according to his conscientious judgment, shall determine which of the things that can be alienated ought to be sold or pledged, while preserving to the pupil his right of action if it can afterwards be proved that the praetor was deceived by misrepresentation.
si communis res erit et socius ad diuisionem prouocet, aut si creditor, qui pignori agrum a parente pupilli acceperit, ius exsequetur, nihil nouandum censeo'. §27.9.1.3Si defunctus dum uiueret res uenales habuerit, testamento tamen non cauerit, uti distraherentur, abstinendum erit uenditione: non enim utique qui ipse uoluerit uendere, idem etiam postea distrahenda putauit.
If the property is held in common, and a co-owner demands a division, or if a creditor, who has received land as a pledge from the parent of the pupil, enforces his right, I think that no change should be made." If the deceased, during his lifetime, had property for sale, but did not provide in his will that it should be sold, the sale must be abstained from; for it does not follow that he who himself wished to sell, also thought that they should be sold after his death.
§27.9.1.4Si minor uiginti quinque annis emit praedia, ut, quoad pretium solueret, essent pignori obligata uenditori, non puto pignus ualere: nam ubi dominium quaesitum est minori, coepit non posse obligari.
If a minor under twenty-five years of age purchases estates on the condition that, until he pays the price, they shall be pledged to the seller, I do not think that the pledge is valid; for as soon as ownership is acquired by the minor, it begins to be impossible for the property to be pledged.

Notes

  1. §27.9.1.2nisi ut id fieret, parentes testamento uel codicillis cauerint — The clause 'ut id fieret' is an object clause governed by the verb 'cauerint', meaning 'in order that this should be done' (i.e., that the alienation should take place). This 'nisi' clause stipulates that the alienation by tutors or curators is forbidden, unless the parents have explicitly permitted such alienation in a will or codicil.
  2. §27.9.1.2manente pupillo actione, si postea potuerit probari obreptum esse praetori — The phrase 'manente pupillo actione' is an ablative absolute. 'obreptum esse' is an impersonal passive infinitive referring to the concealment of facts or misrepresentation (obreptio) made to the praetor. It shows that even if alienation was authorized by the praetor's decree, the minor retains the right of action to challenge the transaction if it is later proved that the decree was obtained under false pretenses.
  3. §27.9.1.3non enim utique qui ipse uoluerit uendere, idem etiam postea distrahenda putauit — The words 'non utique' express a partial negation ('it does not necessarily follow that...'). The gerundive 'distrahenda' implies the omission of 'esse'. This explains the rational basis of the rule: the mere fact that the deceased intended to sell the property during his lifetime does not imply that he also wished it to be alienated by others after his death.
  4. §27.9.1.4nam ubi dominium quaesitum est minori, coepit non posse obligari — The word 'minori' is a dative of agent or interest. It explains the legal paradox: even if a minor purchases land under the condition that it be pledged to the seller until payment, the moment ownership (dominium) passes to the minor, the prohibition of the Oratio Severi against pledging a minor's land immediately applies, rendering the pledge agreement invalid.

Cite this passage

Justinian I, The Digest of Justinian §27.9.1.pr-27.9.1.4. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:27.9.1.pr-27.9.1.4

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