Humanitext Reader

Justinian I · The Digest of Justinian §4.3.5.pr

Action for Fraud in Collusion by a Tutor

Passage 666 of 9271 · Latin

Summary

Ulpian argues that if a ward is defrauded by a third party with the collusion of their tutor, they cannot bring an action for fraud as long as the action of guardianship is available, but if the tutor is insolvent, the action for fraud should be granted.

[ULPIANUS libro undecimo ad edictum. ] §4.3.5.prIdeoque si quis pupillus a Titio, tutore auctore conludente, circumscriptus sit, non debere eum de dolo actionem aduersus Titium habere, cum habeat tutelae actionem, per quam consequatur quod sua intersit.
[ULPIANUS libro undecimo ad edictum.] And therefore, if any ward has been defrauded by Titius, with his tutor colluding and authorizing the transaction, he ought not to have an action for fraud against Titius, since he has the action of guardianship, through which he may obtain his interest.
plane si tutor soluendo non sit, dicendum erit de dolo actionem dari ei.
Clearly, if the tutor is not solvent, it must be said that the action for fraud is given to him.

Notes

  1. §4.3.5.prtutore auctore conludente — An ablative absolute with the noun tutore (tutor) as the subject. The noun auctore acts appositively as 'authorizer/approver', and the present participle conludente means 'colluding', meaning 'with the tutor colluding and giving authority'.
  2. §4.3.5.prquod sua intersit — The construction of the impersonal verb interest. The word sua is historically derived from the feminine ablative singular of the possessive pronoun, meaning 'for him (the ward)'. The relative pronoun quod serves as the subject, meaning 'what is his interest' or 'what is of concern to him' (legally, the indemnity or interest).
  3. §4.3.5.prsoluendo — The dative form of the gerund solvere (to pay). The idiom soluendo esse (literally 'to be for paying') is a legal Latin expression meaning 'to be solvent'. Here, combined with the negative non, it means 'not to be solvent' or 'to be insolvent'.

Cite this passage

Justinian I, The Digest of Justinian §4.3.5.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:4.3.5.pr

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