[IDEM libro undecimo ad edictum. ] §4.4.7.prAit praetor: 'gestum esse dicetur'.
[THE SAME in the eleventh book on the Edict.] The praetor says: 'it shall be said that a transaction has been entered into.' We understand 'transaction' in any manner whatsoever, whether it be a contract or whether something else has occurred.
gestum sic accipimus qualiterqualiter, siue contractus sit, siue quid aliud contigit. §4.4.7.1Proinde si emit aliquid, si uendidit, si societatem coit, si mutuam pecuniam accepit, et captus est, ei succurretur.
Accordingly, if he has bought something, if he has sold, if he has entered into a partnership, if he has received a loan of money, and has been disadvantaged, relief will be granted to him.
§4.4.7.2Sed et si ei pecunia a debitore paterno soluta sit uel proprio et hanc perdidit dicendum est ei subueniri, quasi gestum sit cum eo.
But also, if money is paid to him by a debtor of his father or by his own debtor, and he has lost this money, it must be said that relief is granted to him, as if a transaction had been entered into with him.
et ideo si minor conueniat debitorem, adhibere debet curatores, ut ei soluatur pecunia: ceterum non ei compelletur soluere.
And therefore, if a minor sues a debtor, he must involve curators so that the money may be paid to him; otherwise, the debtor will not be compelled to pay him.
sed hodie solet pecunia in aedem deponi, ut Pomponius libro uicensimo octauo scribit, ne uel debitor ultra usuris oneretur uel creditor minor perdat pecuniam, aut curatoribus solui, si sunt.
But today, as Pomponius writes in his twenty-eighth book, it is customary for the money to be deposited in a temple, so that either the debtor is not further burdened with interest or the minor creditor does not lose the money, or for it to be paid to the curators, if there are any.
permittitur etiam ex constitutione principum debitori compellere adulescentem ad petendos sibi curatores.
It is also permitted by a constitution of the emperors for a debtor to compel the young man to request curators for himself.
quid tamen: si praetor decernat soluendam pecuniam minori sine curatoribus et soluerit, an possit esse securus? dubitari potest: puto autem, si allegans minorem esse compulsus sit ad solutionem, nihil ei imputandum: nisi forte quasi aduersus iniuriam apellandum quis ei putet.
Yet what if the praetor decrees that the money should be paid to the minor without curators, and the debtor pays? Can he be secure? It can be doubted; but I think that if, while alleging that the other is a minor, he was compelled to make the payment, nothing should be imputed to him, unless perhaps someone thinks he ought to have appealed as if against an injustice.
sed credo praetorem hunc minorem in integrum restitui uolentem auditurum non esse.
But I believe that the praetor will not grant a hearing to this minor if he wishes to be restored to his original condition.
§4.4.7.3Non solum autem in his ei succurritur, sed etiam in interuentionibus, ut puta si fideiussorio nomine se uel rem suam obligauit.
Moreover, relief is granted to him not only in these matters, but also in cases of intervention, as for example if he has bound himself or his property as a surety.
Pomponius autem uidetur adquiescere distinguentibus: arbiter ad fideiussores probandos constitutus cum probauit an uero ipse aduersarius? mihi autem semper succurrendum uidetur, si minor sit et se circumuentum doceat.
But Pomponius seems to agree with those who make a distinction: whether the arbiter appointed to approve sureties approved them, or indeed the adversary himself? However, it seems to me that relief should always be granted, if he is a minor and proves that he has been defrauded.
§4.4.7.4Sed et in iudiciis subuenitur, siue dum agit siue dum conuenitur captus sit.
Furthermore, relief is granted in judicial proceedings, whether he has been disadvantaged while acting as plaintiff or while being sued as defendant.
§4.4.7.5Sed et si hereditatem minor adiit minus lucrosam, succurritur ei ut se possit abstinere: nam et hic captus est.
But also, if a minor has accepted an inheritance that is unprofitable, relief is granted to him so that he can abstain from it; for here too he has been disadvantaged.
idem et in bonorum possessione uel alia successione.
The same applies to the possession of goods or any other succession.
non solum autem filius, qui se miscuit paternae hereditati, sed et si aliquis sit ex necessariis minor annis, simili modo restitutionem impetrabit, ueluti si seruus sit cum libertate institutus: dicendum enim erit, si se miscuit, posse ei subueniri aetatis beneficio, ut habeat bonorum suorum separationem.
Moreover, not only a son who has meddled with his father's inheritance, but also if any of the necessary heirs is under age, he will obtain restoration in a similar manner, as for example if he is a slave instituted as heir together with his freedom. For it must be said that, if he has meddled, he can be relieved by the benefit of his age, so that he may have a separation of his own goods.
plane qui post aditam hereditatem restituitur, debet praestare, si quid ex hereditate in rem eius peruenerit nec periit per aetatis imbecillitatem.
Obviously, one who is restored after having accepted an inheritance must restore whatever has come into his property from the inheritance and has not been lost through the weakness of his age.
§4.4.7.6Hodie certo iure utimur, ut et in lucro minoribus succurratur.
Today we follow a settled rule of law, namely that relief is granted to minors also in respect of gain.
§4.4.7.7Pomponius quoque libro uicensimo octauo scribit et si sine dolo cuiusquam legatum repudiauerit, uel in optionis legato captus sit dum elegit deteriorem, uel si duas res promiserit illam aut illam et pretiosiorem dederit, debere subueniri: et subueniendum est.
Pomponius also writes in his twenty-eighth book that if, without any fraud on the part of anyone, he has repudiated a legacy, or has been disadvantaged in a legacy of option while choosing the worse alternative, or if he has promised two things, either this or that, and has given the more valuable one, relief ought to be granted; and indeed it must be granted.
§4.4.7.8Quaesitum est ex eo, quod in lucro quoque minoribus subueniendum dicitur, si res eius uenierit et existat qui plus liceatur, an in integrum propter lucrum restituendus sit? et cottidie praetores eos restituunt, ut rursum admittatur licitatio.
Since it is said that relief must be granted to minors also in respect of gain, the question was raised: if a thing belonging to a minor has been sold and someone appears who bids more, should he be restored to his original condition for the sake of the gain? And daily the praetors restore them, so that bidding may be opened again.
idem faciunt et in his rebus, quae seruari eis debent.
They do the same also in respect of those things which ought to be preserved for them.
quod circumspecte erit faciendum: ceterum nemo accedet ad emptionem rerum pupillarium, nec si bona fide distrahantur.
This, however, must be done circumspectly; otherwise, no one will come forward to purchase the property of wards, even if it is sold in good faith.
et destricte probandum est in rebus, quae fortuitis casibus subiectae sunt, non esse minori aduersus emptorem succurrendum, nisi aut sordes aut euidens gratia tutorum siue curatorum doceatur.
And it must be strictly held that, in the case of things subject to fortuitous hazards, relief should not be granted to a minor against the purchaser, unless either sordid conduct or clear favoritism on the part of the tutors or curators is proved.
§4.4.7.9Restitutus autem cum se hereditati misceat uel eam adeat quam repudiauit, rursus restitui poterit, ut se abstineat: et hoc et rescriptum et responsum est.
Moreover, one who has been restored when he meddled with or accepted an inheritance which he had repudiated, can be restored again so that he may abstain; and this has been stated both in a rescript and in an opinion.
§4.4.7.10Sed quod Papinianus libro secundo responsorum ait minori substitutum seruum necessarium repudiante quidem hereditatem minore necessarium fore, et si fuerit restitutus minor, liberum nihilo minus remanere: si autem prius minor adiit hereditatem, mox abstentus est, substitutum pupillo seruum cum libertate non posse heredem existere neque liberum esse: non per omnia uerum est.
But what Papinian says in his second book of Opinions—that if a minor repudiates an inheritance, a slave substituted as a necessary heir for the minor will become a necessary heir, and even if the minor is restored, the slave will nevertheless remain free; but if the minor first accepted the inheritance and afterwards abstained, the slave substituted with freedom for the pupil cannot become heir nor be free—is not true in all respects.
nam si non est soluendo hereditas, abstinente se herede et diuus Pius rescripsit et imperator noster, et quidem in extraneo pupillo locum fore necessario substituto.
For if the inheritance is insolvent, when the heir abstains, both the deified Pius and our Emperor have issued rescripts that, even in the case of an extraneous pupil, there will be room for the substituted necessary heir.
et quod ait liberum manere, tale est, quasi non et heres maneat, cum pupillus impetrat restitutionem posteaquam abstentus est: cum enim pupillus heres non fiat, sed utiles actiones habeat, sine dubio heres manebit, qui semel extitit.
And as for his statement that the slave remains free, this is as if the slave did not also remain heir when the pupil obtains restoration after having abstained; for since the pupil does not become the heir, but merely has beneficial actions, he who once became heir will undoubtedly remain the heir.
§4.4.7.11Item si non prouocauit intra diem, subuenitur ut prouocet: finge enim hoc desiderare.
Likewise, if he has not appealed within the prescribed period, relief is granted so that he may appeal; for imagine that he desires this.
§4.4.7.12Item et in eremodiciis ei subuenitur.
Likewise, relief is granted to him also in cases of default judgments.
constat autem omnis aetatis hominibus restaurationem eremodicii praestari, si se doceant ex iusta causa afuisse.
However, it is well established that restoration against a default judgment is granted to persons of any age, if they prove that they were absent for a just cause.