[SCAEUOLA libro primo quaestionum. ] §3.5.34.prDiuortio facto negotia uxoris gessit maritus: dos non solum dotis actione, uerum negotiorum gestorum seruari potest.
[SCAEVOLA, Questions, Book I] After a divorce, the husband managed the affairs of his wife; the dowry can be recovered not only by the action on dowry, but also by the action for management of affairs.
haec ita, si in negotiis gestis maritus dum gerit facere potuit: alias enim imputari non potest, quod a se non exegerit.
This is so, if the husband, while managing the affairs, was able to make payment; for otherwise, it cannot be imputed to him that he did not exact it from himself.
sed et posteaquam patrimonium amiserit, plena erit negotiorum gestorum actio, quamuis si dotis actione maritus conueniatur, absoluendus est.
But even after he has lost his patrimony, the action for management of affairs will be fully available, although, if the husband were sued by the action on dowry, he would have to be absolved.
sed hic quidam modus seruandus est, ut ita querellae locus sit quantum facere potuit, quamuis postea amiserit, si illo tempore ei soluere potuit: non enim e uestigio in officio deliquit, si non protinus res suas distraxit ad pecuniam redigendam: praeterire denique aliquid temporis debebit, quo cessasse uideatur.
But here a certain measure must be observed, so that there is ground for complaint only to the extent that he was able to pay, even though he lost it afterwards, if at that time he was able to pay her; for he did not fail in his duty immediately, if he did not straightway sell his property to raise money; indeed, some time must elapse, in which he may be deemed to have been negligent.
quod si interea priusquam officium impleat, res amissa est, perinde negotiorum gestorum non tenetur, ac si numquam facere possit.
But if in the meantime, before he fulfills his duty, the property is lost, he is not liable under the action for management of affairs, just as if he could never have paid.
sed et si facere possit maritus, actio negotiorum gestorum inducitur, quia forte periculum est, ne facere desinat.
But even if the husband is able to pay, the action for management of affairs is brought, because perhaps there is a risk that he may cease to be able to pay.
§3.5.34.1Illum autem non credimus teneri, qui gerit negotia debitoris, ad reddendum pignus, cum pecunia ei debeatur nec fuerit quod sibi possit exsoluere.
Moreover, we do not believe that he who manages the affairs of his debtor is bound to return a pledge, when money is owed to him and there was nothing out of which he could pay himself.
§3.5.34.2Sed nec redhibitoriae speciem uenire in negotiorum gestorum actionem et per hoc sex mensibus exactis perire, si uel mancipium in rebus non inuenit: uel eo inuento quod accessionum nomine additum est, uel quod deterior homo factus esset, uel quod per eum esset adquisitum non ex re emptoris, nec inuenit nec recepisset: nec esset in ipsis emptoris negotiis quae gerebat, unde sibi in praesenti redderet.
Nor does anything of the nature of a redhibitory action enter into the action for management of affairs, and thereby perish after the lapse of six months, even if he did not find the slave among the property; or, if the slave was found, he had neither found nor received what was added under the name of accessions, or because the slave had deteriorated, or because something had been acquired through him not from the property of the buyer; and there was nothing in the buyer's own affairs which he was managing, out of which he could immediately pay himself.
§3.5.34.3Ceterum si ex alia causa perpetuae obligationis, cum sit locuples, debeat, non est imputandum, quod non soluerit, utique si neque usurarum ratio querellam mouet.
Otherwise, if he owes on some other ground of a perpetual obligation, although he is wealthy, it is not to be imputed to him that he did not pay, especially if the matter of interest does not give rise to a complaint.
diuersumque est in tutore debitore, quia ibi interfuit ex priore obligatione solui, ut deberetur ex tutelae actione.
And it is different in the case of a debtor-tutor, because there it was in the interest of the pupil to be paid under the prior obligation, so that it should be owed under the action on guardianship.