[IDEM libro nono ad edictum. ] §3.3.40.prPomponius scribit non omnes actiones per procuratorem posse quem instituere.
[THE SAME in the ninth book on the Edict.] Pomponius writes that not everyone can bring all actions through a procurator.
denique ut liberi, qui in potestate absentis dicuntur, ducantur, interdictum non posse desiderare ait nisi, ut Iulianus ait, causa cognita, id est si et nominatim ei mandatum sit et pater ualetudine uel alia iusta causa impediatur.
Finally, he says that a procurator cannot request an interdict for children, who are said to be in the power of an absentee, to be produced, unless, as Julian says, after an inquiry into the case, that is, if he has been specifically mandated and the father is prevented by illness or another just cause.
§3.3.40.1Si stipuletur procurator damni infecti uel legatorum, debebit de rato cauere.
If a procurator stipulates against threat of damage or for legacies, he must guarantee ratification.
§3.3.40.2Sed et is, qui quasi defensor in rem actione conuenitur, praeter solitam satisdationem iudicatum solui etiam de rato debet cauere.
But also he who is sued as a defender in an action in rem must, in addition to the usual security for satisfaction of the judgment, also guarantee ratification.
quid enim si in hoc iudicio rem meam esse pronuntietur, reuersus ille, cuius defensor extiterat, uelit fundum uindicare: nonne ratum non uidebitur habere quod iudicatum est? denique si uerus procurator extitisset uel ipse praesens causam suam egisset et uictus esset: si a me uindicaret, exceptione rei iudicatae summoueretur, et ita Iulianus libro quinquagensimo digestorum scribit: nam cum iudicatur rem meam esse, simul iudicatur illius non esse.
For what if in this trial it is declared that the thing is mine, and the absentee, whose defender he had appeared as, on his return wants to claim the land? Will he not be seen as not ratifying what has been decided? Finally, if a true procurator had appeared, or if he himself had conducted his own case in person and had been defeated, if he claimed the land from me, he would be barred by the plea of res judicata; and so Julian writes in the fiftieth book of the Digests: for when it is decided that the thing is mine, it is at the same time decided that it is not his.
§3.3.40.3Ratihabitionis autem satisdatio ante litis contestationem a procuratore exigitur: ceterum semel lite contestata non compelletur ad cautionem.
Moreover, security for ratification is required from a procurator before joinder of issue; but once issue has been joined, he will not be compelled to give security.
§3.3.40.4In his autem personis, in quibus mandatum non exigimus, dicendum est, si forte euidens sit contra uoluntatem eos experiri eorum pro quibus interueniunt, debere eos repelli.
However, in the case of those persons from whom we do not require a mandate, it must be said that if by chance it is obvious that they are suing against the will of those on whose behalf they intervene, they must be rejected.
ergo non exigimus ut habeant uoluntatem uel mandatum, sed ne contraria uoluntas probetur: quamuis de rato offerant cautionem.
Therefore, we do not require that they have the consent or a mandate, but only that a contrary will is not proved, even though they offer security for ratification.