[PAULUS libro primo quaestionum. ] §3.5.33.prNesennius Apollinaris Iulio Paulo salutem.
[PAULUS, Questions, Book I] Nesennius Apollinaris sends greetings to Julius Paulus.
Auia nepotis sui negotia gessit: defunctis utrisque auiae heredes conueniebantur a nepotis heredibus negotiorum gestorum actione: reputabant heredes auiae alimenta praestita nepoti.
A grandmother managed the affairs of her grandson. Both having died, the heirs of the grandmother were sued by the heirs of the grandson by the action for management of affairs; the heirs of the grandmother sought to bring into account the maintenance provided to the grandson.
respondebatur auiam iure pietatis de suo praestitisse: nec enim aut desiderasse, ut decernerentur alimenta, aut decreta essent.
The reply was made that the grandmother had provided it out of her own property by virtue of maternal affection; for she had neither requested that maintenance be decreed, nor had it been decreed.
praeterea constitutum esse dicebatur, ut si mater aluisset, non posset alimenta, quae pietate cogente de suo praestitisset, repetere.
Furthermore, it was said to be established that, if a mother had maintained her child, she could not recover the maintenance which she had provided out of her own property under the impulse of affection.
ex contrario dicebatur tunc hoc recte dici, ut de suo aluisse mater probaretur: at in proposito auiam, quae negotia administrabat, uerisimile esse de re ipsius nepotis eum aluisse.
On the contrary, it was argued that this was correctly said only when the mother was proved to have maintained the child out of her own property; whereas, in the case proposed, it was probable that the grandmother, who was administering his affairs, had maintained him out of the grandson's own property.
tractatum est, numquid utroque patrimonio erogata uideantur.
It was discussed whether the expenses should be deemed to have been paid out of both patrimonies.
quaero quid tibi iustius uideatur.
I ask what seems more just to you.
respondi: haec disceptatio in factum constitit: nam et illud, quod in matre constitutum est, non puto ita perpetuo obseruandum.
I replied: "This dispute depends on the facts; for I do not think that even the rule established in the case of a mother is to be observed so absolutely.
quid enim si etiam protestata est se filium ideo alere, ut aut ipsum aut tutores eius conueniret? pone peregre patrem eius obisse et matrem, dum in patriam reuertitur, tam filium quam familiam eius exhibuisse: in qua specie etiam in ipsum pupillum negotiorum gestorum dandam actionem diuus Pius Antoninus constituit.
For what if she even made a protestation that she was maintaining her son for the purpose of suing either him or his tutors? Suppose his father died abroad, and the mother, while returning to her country, maintained both her son and his household; in which case the deified Antoninus Pius decreed that an action for management of affairs should be granted even against the pupil himself.
igitur in re facti facilius putabo auiam uel heredes eius audiendos, si reputare uelint alimenta, maxime si etiam in ratione impensarum ea rettulisse auiam apparebit.
Therefore, on the facts, I think that the grandmother or her heirs should more readily be heard if they wish to bring the maintenance into account, especially if it appears that the grandmother had entered those expenses in her account of expenditures.
illud nequaquam admittendum puto, ut de utroque patrimonio erogata uideantur.
On the other hand, I think that the opinion that the expenses should be deemed to have been paid out of both patrimonies is by no means to be admitted."