[IDEM libro tertio aureorum. ] §44.7.5.prSi quis absentis negotia gesserit, si quidem ex mandatu, palam est ex contractu nasci inter eos actiones mandati, quibus inuicem experiri possunt de eo, quod alterum alteri ex bona fide praestare oportet: si uero sine mandatu, placuit quidem sane eos inuicem obligari eoque nomine proditae sunt actiones, quas appellamus negotiorum gestorum, quibus aeque inuicem experiri possunt de eo, quod ex bona fide alterum alteri praestare oportet.
[THE SAME, from the third book of the Golden Writings.] If someone manages the affairs of an absent person, if indeed by mandate, it is clear that actions of mandate arise between them from a contract, by which they can in turn sue each other concerning what one ought to perform for the other in good faith. But if indeed without a mandate, it has certainly been decided that they are bound to each other, and on that account, actions have been provided which we call actions for the management of affairs, by which they can equally in turn sue each other concerning what one ought to perform for the other in good faith.
sed neque ex contractu neque ex maleficio actiones nascuntur: neque enim is qui gessit cum absente creditur ante contraxisse, neque ullum maleficium est sine mandatu suscipere negotiorum administrationem: longe magis is, cuius negotia gesta sunt, ignorans aut contraxisse aut deliquisse intellegi potest: sed utilitatis causa receptum est inuicem eos obligari.
But these actions arise neither from a contract nor from wrongdoing: for neither is he who managed the affairs believed to have previously contracted with the absent person, nor is it any wrongdoing to undertake the administration of affairs without a mandate; much less can he whose affairs were managed, being ignorant of it, be understood to have either contracted or committed a wrong. But for the sake of utility, it has been accepted that they are bound to each other.
ideo autem id ita receptum est, quia plerumque homines eo animo peregre proficiscuntur quasi statim redituri nec ob id ulli curam negotiorum suorum mandant, deinde nouis causis interuenientibus ex necessitate diutius absunt: quorum negotia disperire iniquum erat, quae sane disperirent, si uel is, qui obtulisset se negotiis gerundis, nullam habiturus esset actionem de eo, quod utiliter de suo impendisset, uel is, cuius gesta essent, aduersus eum, qui inuasisset negotia eius, nullo iure agere posset.
Now, this was accepted in this way because for the most part, men set out abroad with the intention of returning immediately, and for that reason, they do not mandate the care of their affairs to anyone, and then, due to new causes intervening, they are of necessity absent for a longer time; it was unfair that their affairs should perish, which indeed would perish if either he who had offered himself to manage the affairs was to have no action for what he had usefully expended from his own funds, or he whose affairs had been managed could sue by no right against him who had intruded into his affairs.
§44.7.5.1Tutelae quoque iudicio qui tenentur, non proprie ex contractu obligati intelleguntur (nullum enim negotium inter tutorem et pupillum contrahitur): sed quia sane non ex maleficio tenentur, quasi ex contractu teneri uidentur.
Those also who are held by the action of guardianship are not understood to be bound strictly by a contract (for no transaction is contracted between a guardian and a ward); but because they are certainly not held by wrongdoing, they seem to be held as if by a contract.
et hoc autem casu mutuae sunt actiones: non tantum enim pupillus cum tutore, sed et contra tutor cum pupillo habet actionem, si uel impenderit aliquid in rem pupilli uel pro eo fuerit obligatus aut rem suam creditori eius obligauerit.
And in this case also, the actions are mutual: for not only does the ward have an action against the guardian, but on the contrary, the guardian has an action against the ward, if he has either expended anything on the property of the ward, or has been bound for him, or has pledged his own property to his creditor.
§44.7.5.2Heres quoque, qui legatum debet, neque ex contractu neque ex maleficio obligatus esse intellegitur: nam neque cum defuncto neque cum herede contraxisse quicquam legatarius intellegitur: maleficium autem nullum in ea re esse plus quam manifestum est.
An heir also, who owes a legacy, is understood to be bound neither by a contract nor by wrongdoing; for the legatee is understood to have contracted nothing either with the deceased or with the heir; and that there is no wrongdoing in that matter is more than obvious.
§44.7.5.3Is quoque, qui non debitum accipit per errorem soluentis, obligatur quidem quasi ex mutui datione et eadem actione tenetur, qua debitores creditoribus: sed non potest intellegi is, qui ex ea causa tenetur, ex contractu obligatus esse: qui enim soluit per errorem, magis distrahendae obligationis animo quam contrahendae dare uidetur.
He also who receives what is not due through the error of the payer is indeed bound as if by the giving of a loan and is held by the same action by which debtors are held to creditors; but he who is held from that cause cannot be understood to be bound by a contract; for he who pays by error seems to give with the intention of dissolving an obligation rather than contracting one.
§44.7.5.4Si iudex litem suam fecerit, non proprie ex maleficio obligatus uidetur, sed quia neque ex contractu obligatus est utique peccasse aliquid intellegitur, licet per imprudentiam, ideo uidetur quasi ex maleficio teneri.
If a judge makes a litigation his own, he does not seem to be bound strictly by wrongdoing, but because he is not bound by a contract either, and is understood to have committed some fault, even if through imprudence, he seems therefore to be held as if by wrongdoing.
§44.7.5.5Is quoque, ex cuius cenaculo (uel proprio ipsius uel conducto uel in quo gratis habitabat) deiectum effusumue aliquid est ita, ut alicui noceret, quasi ex maleficio teneri uidetur: ideo autem non proprie ex maleficio obligatus intellegitur, quia plerumque ob alterius culpam tenetur aut serui aut liberi.
He also from whose lodging (whether his own, or rented, or in which he lived for free) something has been thrown or poured out in such a way as to harm someone, seems to be held as if by wrongdoing; but he is understood not to be bound strictly by wrongdoing for this reason, because for the most part, he is held due to the fault of another, either of a slave or of a free person.
cui similis est is, qui ea parte, qua uolgo iter fieri solet, id positum aut suspensum habet, quod potest, si ceciderit, alicui nocere.
Similar to him is he who, in that part where people commonly travel, has placed or suspended something which, if it falls, can harm someone.
ideo si filius familias seorsum a patre habitauerit et quid ex cenaculo eius deiectum effusumue sit siue quid positum suspensumue habuerit, cuius casus periculosus est, Iuliano placuit in patrem neque de peculio neque noxalem dandam esse actionem, sed cum ipso filio agendum.
Therefore, if a son-in-power has lived apart from his father, and something has been thrown or poured out from his lodging, or he has placed or suspended something whose fall is dangerous, Julian decided that neither an action concerning the peculium nor a noxal action should be given against the father, but that action must be brought against the son himself.
§44.7.5.6Item exercitor nauis aut cauponae aut stabuli de damno aut furto, quod in naue aut caupona aut stabulo factum sit, quasi ex maleficio teneri uidetur, si modo ipsius nullum est maleficium, sed alicuius eorum, quorum opera nauem aut cauponam aut stabulum exerceret: cum enim neque ex contractu sit aduersus eum constituta haec actio et aliquatenus culpae reus est, quod opera malorum hominum uteretur, ideo quasi ex maleficio teneri uidetur.
Likewise, the operator of a ship, an inn, or a stable seems to be held as if by wrongdoing for damage or theft that has occurred in the ship, inn, or stable, provided that there is no wrongdoing of his own, but of one of those by whose labor he operated the ship, inn, or stable; for since this action is not established against him from a contract, and he is to some extent guilty of fault because he employed the labor of bad men, he seems therefore to be held as if by wrongdoing.