[ULPIANUS libro septuagensimo sexto ad edictum. ] §44.4.4.20Item quaeritur, si debitor meus te circumueniebat teque mihi reum dederit egoque abs te stipulatus fuero, deinde petam, an doli mali exceptio obstet.
Likewise it is asked: if my debtor deceived you and gave you to me as a debtor, and I stipulated from you, and subsequently I claim, whether the exception of doli mali opposes.
et magis est, ut non tibi permittatur de dolo debitoris mei aduersus me excipere, cum non ego te circumuenerim: aduersus ipsum autem debitorem meum poteris experiri.
And it is more acceptable that you should not be permitted to plead the dolus of my debtor against me, since I did not deceive you; but you will be able to take action against my debtor himself.
§44.4.4.21Sed et si mulier post admissum dolum debitorem suum marito in dotem delegauerit, idem probandum erit de dolo mulieris non esse permittendum excipere, ne indotata fiat.
But also if a woman, after committing dolus, delegated her debtor to her husband as a dowry, the same conclusion must be approved: that it must not be permitted to plead concerning the dolus of the woman, lest she become portionless.
§44.4.4.22Apud Iulianum quaesitum est, si heres soceri, a quo dos peteretur, exciperet de dolo mariti et mulieris, cui pecunia quaereretur, an obstatura esset exceptio ex persona mulieris.
The question was raised in Julian: if the heir of the father-in-law, from whom the dowry was claimed, should plead concerning the dolus of the husband and of the woman for whom the money was acquired, whether the exception from the person of the woman would oppose.
et ait Iulianus, si maritus ex promissione dotis ab herede soceri petat et heres excipiat de dolo filiae, cui ea pecunia adquireretur, exceptionem obstare: dos enim, quam maritus ab herede soceri petit, intellegitur, inquit, filiae adquiri, cum per hoc dotem sit habitura.
And Julian says that if the husband claims from the heir of the father-in-law on the basis of the promise of dowry, and the heir pleads concerning the dolus of the daughter, for whom that money was acquired, the exception opposes; for the dowry, he says, which the husband claims from the heir of the father-in-law, is understood to be acquired for the daughter, since through this she will have a dowry.
illud non explicat Iulianus, an et de dolo mariti excipi possit: puto autem eum hoc sentire, ut etiam de dolo mariti noceat exceptio, licet uideatur nulla dos filiae, ut ait, quaeri.
Julian does not explain this, whether one can plead also concerning the dolus of the husband; but I think he is of this opinion, that the exception prejudices also concerning the dolus of the husband, although it may seem, as he says, that no dowry is acquired for the daughter.
§44.4.4.23Illa etiam quaestio uentilata est apud plerosque, an de dolo tutoris exceptio pupillo experienti nocere debeat.
That question was also discussed among many, whether the exception concerning the dolus of a tutor ought to prejudice a ward who brings an action.
et ego puto utilius, etsi per eas personas pupillis fauetur, tamen dicendum esse, siue quis emerit a tutore rem pupilli siue contractum sit cum eo in rem pupilli, siue dolo quid tutor fecerit et ex eo pupillus locupletior factus est, pupillo nocere debere, nec illud esse distinguendum, cautum sit ei an non, soluendo sit an non tutor, dummodo rem administret: unde enim diuinat is, qui cum tutore contrahit? plane si mihi proponas collusisse aliquem cum tutore, factum suum ei nocebit.
And I think it is more useful to say that, even though wards are favored through those persons, nevertheless whether someone bought a thing of the ward from the tutor, or contracted with him regarding the property of the ward, or if the tutor did something with dolus and from this the ward was made richer, it ought to prejudice the ward; nor must that distinction be made, whether security was given to him or not, or whether the tutor is solvent or not, provided that he administers the property; for how does he who contracts with a tutor divine? Clearly, if you propose to me that someone colluded with the tutor, his own act will prejudice him.
§44.4.4.24Si quis non tutor, sed pro tutore negotia gerat, an dolus ipsius noceat pupillo, uideamus.
Let us see whether the dolus of one who is not a tutor but manages affairs as a tutor prejudices the ward.
et putem non nocere: nam si is, qui pro tutore negotia gerebat, rem uendiderit et usucapta sit, exceptionem non nocere pupillo rem suam persequenti, etiamsi ei cautum sit, quia huic rerum pupilli administratio concessa non fuit.
And I should think that it does not prejudice; for if he who was managing affairs as a tutor sold a thing and it was acquired by usucapion, the exception does not prejudice the ward who pursues his own thing, even if security was given to him, because the administration of the ward’s property was not granted to this person.
§44.4.4.24aSecundum haec magis opinor de dolo tutoris exceptionem pupillo esse obiciendam.
According to these, I am rather of the opinion that the exception concerning the dolus of a tutor must be opposed to the ward.
§44.4.4.25Quae in tutore diximus, eadem in curatore quoque furiosi dicenda erunt, sed et in prodigi uel minoris uiginti quinque annis.
What we have said in the case of a tutor must also be said in the case of a curator of a lunatic, and also in the case of a prodigal or a minor under twenty-five years.
§44.4.4.26De dolo autem ipsius minoris uiginti quinque annis exceptio utique locum habebit: nam et de pupilli dolo interdum esse excipiendum nequaquam ambigendum, est ex ea aetate, quae dolo non careat.
But concerning the dolus of the minor under twenty-five years himself, the exception will certainly have a place; for there is no doubt that one must sometimes plead concerning the dolus of a ward, if he is of that age which is not free from dolus.
denique Iulianus quoque saepissime scribsit doli pupillos, qui prope pubertatem sunt, capaces esse.
Finally, Julian also very often wrote that wards who are close to puberty are capable of dolus.
quid enim, si debitor ex delegatu pupilli pecuniam creditori eius soluit? fingendus est, inquit, pubes esse, ne propter malitiae ignorantiam bis eandem pecuniam consequatur.
For what if a debtor, on the delegation of a ward, paid money to his creditor? Julian says that he must be feigned to be of puberty, lest on account of the ignorance of his malice he obtain the same money twice.
idem seruandum in furioso ait, si, cum existimaretur compos mentis esse, iusserit debitorem creditori soluere, uel si quod exegit, domi habeat.
He says that the same must be observed in the case of a lunatic if, when he was thought to be of sound mind, he ordered the debtor to pay the creditor, or if he has at home what he recovered.
§44.4.4.27De auctoris dolo exceptio emptori non obicitur.
The exception concerning the dolus of a predecessor is not opposed to the buyer.
si autem accessione auctoris utitur, aequissimum uisum est ei, qui ex persona auctoris utitur accessione, pati dolum auctoris: et peraeque traditur rei quidem cohaerentem exceptionem etiam emptori nocere, eam autem, quae ex delicto personae oriatur, nocere non oportere.
If, however, he uses the accession of the predecessor, it has been deemed most equitable that he who uses the accession from the person of the predecessor should suffer the dolus of the predecessor; and it is equally handed down that an exception adhering to the thing indeed prejudices also the buyer, but that one which arises from the offense of a person ought not to prejudice.