[IDEM libro quinquagensimo nono ad edictum. ] §42.4.3.prApud Iulianum quaeritur, si communem rem cum Titio pater pupilli habuerit et communi diuidundo iudicio pupillus non defendatur nihilque erit, cuius nomine propter personam patris condemnatio fieri debeat: utrum uenire bona patris oporteat an uero rei seruandae causa possideantur.
[THE SAME, in the fifty-ninth book on the Edict.] In Julian it is asked: if the father of a ward held property in common with Titius, and in an action for partition of common property the ward is not defended, and there is nothing on account of which a condemnation ought to be made in respect of the father's person, whether the father's property ought to be sold, or rather [the ward's property] should be possessed for the purpose of preserving it.
et ait Iulianus, si quidem pater aliquos fructus percepit aut fecerit rem deteriorem, bona eius uenire possunt: si uero nihil sit, propter quod patris bona ueneant, pupilli possideri.
And Julian says: if indeed the father received any fruits or made the property worse, his property can be sold; but if there is nothing for which the father's property should be sold, the ward's property is to be possessed.
Marcellus autem notat perquam iniquum esse eum, qui nihil cum pupillo contraxit, expectare eius pubertatem.
Marcellus, however, notes that it is extremely unjust that one who contracted nothing with the ward should wait for his puberty.
quae sententia habet rationem: ideoque cum contractus ex persona patris descendat, dicendum erit non esse exspectandam pupilli pubertatem.
This opinion is reasonable; and therefore, since the contract descends from the person of the father, it must be said that the puberty of the ward is not to be waited for.
§42.4.3.1Contractum cum pupillo potest dici et si cum seruo eius contractum sit: competit enim aduersus eum de peculio actio.
It can be said that a contract was made with a ward even if it was made with his slave; for an action on the peculium is available against him.
unde probandum est ex omnibus causis, ex quibus aduersus pupillum actio datur, hoc idem seruandum.
Whence it must be approved that this same rule is to be observed in all cases from which an action is given against a ward.
et facilius erit hoc probandum in seruo, qui in rem domini uertit aut iussu eius aut si institoria cum eo agi possit.
And this will be more easily approved in the case of a slave who turned [the transaction] to the profit of his master, or by his order, or if an institorian action can be brought against him.
§42.4.3.2Ego puto: et si cum tutore eius contractum est, ex qua causa actio in pupillum datur, magis est, ut edicto locus sit, quasi cum eo contractum sit.
I think: even if a contract was made with his tutor, from which cause an action is given against the ward, it is more correct that the edict should apply, as if the contract had been made with him.
§42.4.3.3Si pupillus heres extiterit alicui exque ea causa legata debeat, uidendum est, an huic edicto locus sit: magisque est, ut Marcellus scribit, etiam pupilli posse bona possideri esseque in arbitrio hereditariorum creditorum, quid potius eligant: etenim uidetur impubes contrahere, cum adiit hereditatem.
If a ward has become heir to someone and on that account owes legacies, it must be seen whether this edict applies; and it is more correct, as Marcellus writes, that even the ward's property can be possessed, and that it is in the choice of the hereditary creditors what they would rather select; for a minor is deemed to contract when he enters upon an inheritance.