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Justinian I · The Digest of Justinian §3.5.8.pr

Survival of the Action on Negotiorum Gestio after Ratification

Passage 580 of 9271 · Latin

Summary

Against Pomponius's view that a manager is not liable for business managed once the principal approves it, Scaeuola argues that the action on business managed remains available even after ratification to enable mutual recoveries (such as collected funds and expenses).

[SCAEUOLA libro primo quaestionum. ] §3.5.8.prPomponius scribit, si negotium a te quamuis male gestum probauero, negotiorum tamen gestorum te mihi non teneri.
[SCAEUOLA, Questions, book one] Pomponius writes that if I approve a business managed by you, however badly it was managed, you are nevertheless not bound to me for business managed.
uidendum ergo ne in dubio hoc, an ratum habeam, actio negotiorum gestorum pendeat: nam quomodo, cum semel coeperit, nuda uoluntate tolletur? sed superius ita uerum se putare, si dolus malus a te absit.
We must therefore see whether, during this state of doubt as to whether I shall ratify it, the action on business managed remains pending; for how, once it has begun, can it be dissolved by mere will? But he thinks the above is true only if bad faith is absent on your part.
Scaeuola: immo puto et si comprobem, adhuc negotiorum gestorum actionem esse, sed eo dictum te mihi non teneri, quod reprobare non possim semel probatum: et quemadmodum quod utiliter gestum est necesse est apud iudicem pro rato haberi, ita omne quod ab ipso probatum est.
Scaeuola: On the contrary, I think that even if I approve it, the action on business managed still exists, but it was said that you are not bound to me because I cannot reject what has once been approved; and just as what has been usefully managed must of necessity be held as ratified before the judge, so is everything that has been approved by the principal himself.
ceterum si ubi probaui, non est negotiorum actio: quid fiet, si a debitore meo exegerit et probauerim? quemadmodum recipiam? item si uendiderit? ipse denique si quid impendit, quemadmodum recipiet? nam utique mandatum non est.
Besides, if there is no action on business managed when I have approved it, what will happen if he has collected money from my debtor and I have approved it? How shall I recover it? Likewise if he has sold something? Finally, if he himself has expended anything, how will he recover it? For in any case it is not a mandate.
erit igitur et post ratihabitionem negotiorum gestorum actio.
Therefore, there will be an action on business managed even after ratification.

Notes

  1. §3.5.8.pran ratum habeam — An indirect question clause in apposition with the preceding demonstrative `hoc` and noun `dubio`, specifying the content of the uncertainty ('whether I shall ratify it').
  2. §3.5.8.preo dictum te mihi non teneri — The accusative and infinitive clause `te mihi non teneri` serves as the subject of the impersonal passive `dictum [esse]`, which is explained by the `quod` clause corresponding to the ablative of cause `eo`. It means 'it was said that you are not bound to me for the reason that...'.
  3. §3.5.8.prsi ubi probaui — A construction where the temporal or situational conjunction `ubi` ('when I have approved') is embedded within the conditional clause introduced by `si`, hypothesizing the situation after the act of approval has been completed.

Cite this passage

Justinian I, The Digest of Justinian §3.5.8.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:3.5.8.pr

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