[IDEM libro undecimo ad edictum. ] §4.4.3.4Sed utrum solis patribus familiarum an etiam filiis familiarum succurri debeat, uidendum.
But we must see whether relief should be granted only to fathers of families, or also to sons of families.
mouet dubitationem, quod si quis dixerit etiam filiis familiarum in re peculiari subueniendum, efficiet, ut per eos etiam maioribus subueniatur, id est patribus eorum: quod nequaquam fuit praetori propositum: sententiam existimantium, filium familias minorem annis in integrum restitui posse ex his solis causis quae ipsius intersint, puta si sit obligatus.
What causes doubt is that if anyone should say that support is to be granted to sons of families in respect of their peculiar property, he will bring it about that through them relief is also granted to persons of full age, that is, to their fathers; which was by no means the intention of the praetor. [We approve] the opinion of those who think that a minor son of a family can be restored to his original state only on those grounds which concern him personally, for instance, if he has bound himself by an obligation.
proinde si iussu patris obligatus sit, pater utique poterit in solidum conueniri: filius autem cum et ipse possit uel in potestate manens conueniri uel etiam emancipatus uel exheredatus in id quod facere potest, et quidem in potestate manens etiam inuito patre ex condemnatione conueniri: auxilium impetrare debebit, si ipse conueniatur.
Accordingly, if he has bound himself by the order of his father, the father can certainly be sued for the whole amount; but since the son himself can be sued either while remaining under paternal power, or even after being emancipated or disinherited to the extent of his ability to pay, and indeed, while remaining under power, can be sued on a judgment even against his father's will, he must seek assistance if he himself is sued.
sed an hoc auxilium patri quoque prosit, ut solet interdum fideiussori eius prodesse, uideamus: et non puto profuturum.
But let us see whether this assistance also benefits the father, as it is sometimes accustomed to benefit his surety; and I do not think it will.
si igitur filius conueniatur, postulet auxilium: si patrem conueniat creditor, auxilium cessat: excepta mutui datione: in hanc enim si iussu patris mutuam pecuniam accepit, non adiuuatur.
If, therefore, the son is sued, let him request assistance; if the creditor sues the father, the assistance ceases, except in the case of a loan of money; for if he received money on loan in this case by the order of his father, he is not assisted.
proinde et si sine iussu patris contraxit et captus est, si quidem pater de peculio conueniatur, filius non erit restituendus: si filius conueniatur, poterit restitui.
Accordingly, even if he contracted without the order of his father and was defrauded, if indeed the father is sued on account of the peculiar property, the son is not to be restored; if the son is sued, he can be restored.
nec eo mouemur, quasi intersit filii peculium habere: magis enim patris quam filii interest, licet aliquo casu ad filium peculium spectet: ut puta si patris eius bona a fisco propter debitum occupata sunt: nam peculium ei ex constitutione Claudii separatur.
Nor are we moved by the consideration that it supposedly concerns the son to have a peculiar property; for it concerns the father more than the son, although in some cases the peculiar property belongs to the son, as, for instance, if his father's property has been seized by the treasury on account of a debt; for the peculiar property is separated for him by a constitution of Claudius.
§4.4.3.5Ergo etiam filiam familias in dote captam, dum patri consentit stipulanti dotem non statim quam dedit, uel adhibenti aliquem qui dotem stipularetur, puto restituendam, quoniam dos ipsius filiae proprium patrimonium est.
Therefore, I think that even a daughter of a family who has been defrauded in respect of her dowry, while consenting to her father stipulating for the dowry not immediately after he gave it, or calling in someone to stipulate for the dowry, ought to be restored, since the dowry is the daughter's own property.
§4.4.3.6Si quis minor uiginti quinque annis adrogandum se dedit et in ipsa adrogatione se circumuentum dicat (finge enim a praedone eum hominem locupletem adrogatum): dico debere eum audiri in integrum se restituentem.
If anyone under twenty-five years of age has given himself to be arrogated, and says that he was defrauded in the arrogation itself (for imagine that a wealthy man was arrogated by a plunderer), I say that he ought to be heard when seeking to be restored to his original state.
§4.4.3.7Si quid minori fuerit filio familias legatum post mortem patris uel fideicommissum relictum et captus est, forte dum consentit patri paciscenti, ne legatum peteretur: potest dici in integrum restituendum, quoniam ipsius interest propter spem legati, quod ei post mortem patris competit.
If something has been bequeathed or left as a trust to a minor son of a family after the death of his father, and he has been defrauded, perhaps while consenting to his father making an agreement that the bequest should not be demanded: it can be said that he should be restored to his original state, since it concerns him personally on account of the expectation of the bequest which belongs to him after the death of his father.
sed et si ei legatum sit aliquid quod personae eius cohaeret, puta ius militiae, dicendum est posse eum restitui in integrum: interfuit enim eius non capi, cum hanc patri non adquireret, sed ipse haberet.
But even if there has been bequeathed to him something which is closely attached to his person, for instance, the right of military service, it must be said that he can be restored to his original state; for it concerned him not to be defrauded, since he would not acquire this for his father, but would hold it himself.
§4.4.3.8Et si heres sit institutus, si a patre in diebus centum sit emancipatus: mox patrem debuerit certiorare nec fecerit cum posset: qui eum emancipasset, si cognouisset: dicendum erit posse eum restitui in integrum parato patre eum emancipare.
And if he has been appointed heir, on condition that he be emancipated by his father within one hundred days, and he ought soon to have informed his father but did not do so when he could (who would have emancipated him if he had known), it must be said that he can be restored to his original state, provided the father is ready to emancipate him.
§4.4.3.9Pomponius adicit ex his causis, ex quibus in re peculiari filii familias restituuntur, posse et patrem quasi heredem nomine filii post obitum eius impetrare cognitionem.
Pomponius adds that, for those causes for which sons of families are restored in respect of their peculiar property, the father also, as if he were the heir, can obtain a trial in the name of his son after his death.
§4.4.3.10Si autem filius familias sit, qui castrense peculium habeat, procul dubio ex his, quae ad castrense peculium spectant, in integrum restituendus erit quasi in proprio patrimonio captus.
But if he is a son of a family who has a quasi-military peculiar property, he ought beyond doubt to be restored to his original state in respect of those matters which belong to the quasi-military peculiar property, just as if he had been defrauded in his own private property.
§4.4.3.11Seruus autem minor annis uiginti quinque nullo modo restitui poterit, quoniam domini persona spectatur, qui sibi debebit imputare, cur minori rem commisit.
But a slave under twenty-five years of age can in no way be restored, because the person of the master is looked at, who ought to blame himself for having entrusted the matter to a minor.
quare et si per impuberem contraxerit, idem erit dicendum, ut et Marcellus libro secundo digestorum scribit.
Therefore, even if he contracted through a person below the age of puberty, the same must be said, as Marcellus also writes in the second book of his Digests.
et si forte libera peculii administratio minori seruo sit concessa, maior dominus ex hac causa non restituetur.
And if by chance the free administration of a peculiar property has been granted to a minor slave, the master of full age shall not be restored on this account.