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Justinian I · The Digest of Justinian §3.5.9.pr-3.5.9.1

Criteria for Useful Management and Recovery of Expenses

Passage 581 of 9271 · Latin

Summary

The text discusses the requirements for business management to be deemed useful, arguing that objective usefulness at the inception of the act, rather than the ultimate outcome, is required.

[ULPIANUS libro decimo ad edictum. ] §3.5.9.prSed an ultro mihi tribuitur actio sumptuum quos feci? et puto competere, nisi specialiter id actum est, ut neuter aduersus alterum habeat actionem.
[ULPIAN, on the Edict, book ten] But is an action furthermore granted to me for the expenses which I incurred? And I think it is competent, unless it was specifically agreed that neither should have an action against the other.
§3.5.9.1Is autem qui negotiorum gestorum agit non solum si effectum habuit negotium quod gessit, actione ista utetur, sed sufficit, si utiliter gessit, etsi effectum non habuit negotium.
Moreover, he who sues on business managed will use that action not only if the business he managed achieved its effect, but it is sufficient if he managed it usefully, even if the business did not achieve its effect.
et ideo si insulam fulsit uel seruum aegrum curauit, etiamsi insula exusta est uel seruus obit, aget negotiorum gestorum: idque et Labeo probat.
And therefore, if he supported a block of flats or treated a sick slave, even if the block of flats was burnt down or the slave died, he will bring the action on business managed; and this Labeo also approves.
sed ut Celsus refert, Proculus apud eum notat non semper debere dari.
But as Celsus reports, Proculus notes in his commentaries on Labeo that it ought not always to be granted.
quid enim si eam insulam fulsit, quam dominus quasi impar sumptui dereliquerit, uel quam sibi necessariam non putauit? onerauit, inquit, dominum secundum Labeonis sententiam, cum unicuique liceat et damni infecti nomine rem derelinquere.
For what if he supported a block of flats which the owner had abandoned as being unequal to the expense, or which he did not think necessary for himself? He burdened the owner, he says, according to Labeo's opinion, whereas everyone is permitted to abandon a thing on account of threatened damage.
sed istam sententiam Celsus eleganter deridet: is enim negotiorum gestorum, inquit, habet actionem, qui utiliter negotia gessit: non autem utiliter negotia gerit, qui rem non necessariam uel quae oneratura est patrem familias adgreditur.
But Celsus elegantly derides this opinion; for he says that he has the action on business managed who has managed business usefully; but he does not manage business usefully who undertakes a matter that is unnecessary or which will burden the head of the family.
iuxta hoc est, quod Iulianus scribit, eum qui insulam fulsit uel seruum aegrotum curauit, habere negotiorum gestorum actionem, si utiliter hoc faceret, licet euentus non sit secutus.
In line with this is what Julian writes, that he who supported a block of flats or treated a sick slave has the action on business managed if he did this usefully, although the event did not follow.
ego quaero: quid si putauit se utiliter facere, sed patri familias non expediebat? dico hunc non habiturum negotiorum gestorum actionem: ut enim euentum non spectamus, debet utiliter esse coeptum.
I ask: what if he thought he was doing it usefully, but it was not expedient for the head of the family? I say that he will not have the action on business managed; for just as we do not look at the event, it must have been begun usefully.

Notes

  1. §3.5.9.prultro — The adverb ultro (furthermore, on one's own initiative) introduces the question of whether a counter-action (actio contraria) for the recovery of expenses is additionally granted to the manager against the principal.
  2. §3.5.9.1Proculus apud eum notat — The pronoun eum in apud eum (at his place/in his work) refers to Labeo, who appears just before. It indicates that Celsus is citing Proculus's commentary on Labeo's works (Notae ad Labeonem).
  3. §3.5.9.1cum unicuique liceat et damni infecti nomine rem derelinquere — The conjunction cum expresses cause ("since/inasmuch as"). damni infecti is a genitive of "threatened damage" (damnum infectum). In this context, it asserts that since an owner of a dangerous building has the right to abandon the property to avoid providing security for future damage, a manager should not burden the owner by repairing it without authorization.
  4. §3.5.9.1ut enim euentum non spectamus, debet utiliter esse coeptum — The conjunction ut with the indicative spectamus expresses comparison ("just as"). The subject of the impersonal passive perfect infinitive esse coeptum is the management of business (negotium). It states that, just as the ultimate outcome (euentus) is not evaluated, the management must have been begun usefully at its inception.

Cite this passage

Justinian I, The Digest of Justinian §3.5.9.pr-3.5.9.1. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:3.5.9.pr-3.5.9.1

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