[ULPIANUS libro quinquagensimo septimo ad edictum. ] §47.10.17.12Plane si praesens agere nolit, uel quia differt uel quia remittit atque donat iniuriam, magis est, ut filio actio non detur: nam et cum abest, idcirco datur filio actio, quia uerisimile est patrem, si praesens fuisset, acturum fuisse.
Clearly, if the father, being present, is unwilling to sue, whether because he postpones it or because he remits and pardons the injury, it is more correct that the action should not be given to the son; for even when the father is absent, the action is given to the son for this reason, because it is probable that the father, if he had been present, would have sued.
§47.10.17.13Interdum tamen putamus et si pater remittat, iniuriarum actionem filio dandam, ut puta si patris persona uilis abiectaque sit, filii honesta: neque enim debet pater uilissimus filii sui contumeliam ad suam uilitatem metiri.
Sometimes, however, we think that even if the father remits it, the action for injury should be given to the son; as for instance if the person of the father is low and abject, and that of the son is honorable; for a very low father ought not to measure the insult to his son by his own lownesses.
ponamus esse eum patrem, cui iure meritoque curator a praetore constitueretur.
Let us suppose that he is such a father for whom a curator would be appointed by the praetor by right and merit.
§47.10.17.14Sed si pater lite contestata coeperit abesse uel etiam neclegere executionem pater uilis, dicendum est causa cognita translationem filio competere.
But if, after joinder of issue, the low father begins to be absent or even to neglect the prosecution of the case, it must be said that, after investigation of the case, the transfer of the action is available to the son.
idem et si emancipatus filius esse proponatur.
The same applies if the son is proposed to be emancipated.
§47.10.17.15Procuratorem patris praetulit praetor ipsis personis, quae iniuriam passae sunt.
The praetor preferred the father's procurator to the very persons who suffered the injury.
si tamen procurator aut neglegat aut colludat aut non sufficiat adversus personas, quae iniuriam fecerunt, ipsi potius, qui passus est iniuriam, actio iniuriarum competit.
If, however, the procurator either neglects or colludes or is insufficient against the persons who committed the injury, the action for injury is available rather to the person himself who suffered the injury.
§47.10.17.16Procuratorem autem accipere debemus non utique eum, cui specialiter mandata est procuratio actionis iniuriarum, uerum sufficit eum esse, cui omnium rerum administratio mandata est.
Moreover, we ought to understand as a procurator not indeed one to whom the management of the action for injury has been specially mandated, but it is sufficient that he is one to whom the administration of all affairs has been mandated.
§47.10.17.17Quod autem ait praetor causa cognita ipsi, qui iniuriam accepisse dicetur, iudicium permitti, ita accipiendum est, ut in cognitione causae hoc uersetur, quam longe pater absit et quando superuenturus, et numquid is, qui iniuriarum uult actionem mouere, segnitior uel inutilis admodum, qui non sufficiat ad rei cuius administrationem ac per hoc nec ad actionem.
And what the praetor says, that after investigation of the case the action is permitted to the person himself who is alleged to have suffered the injury, must be understood in this way, that the investigation of the case turns upon this: how far the father is absent and when he is to arrive, and whether he who wishes to bring the action for injury is rather slow or completely useless, so as not to be fit for the administration of any matter and, through this, not even for the action.
§47.10.17.18Quod deinde ait 'qui iniuriam accepit', interdum ita accipiendum est, ut patri eius competat actio.
Next, what he says "he who suffered the injury" must sometimes be understood in such a way that the action is available to his father.
ut puta nepoti facta iniuria est, pater praesens est, auus abest: scribit Iulianus patri potius dandam iniuriarum actionem quam ipsi nepoti: ad cuius, inquit, officium pertinet etiam uiuente auo filium suum in omnibus tueri.
As for instance, an injury has been done to a grandson, his father is present, and his grandfather is absent; Julian writes that the action for injury should be given to the father rather than to the grandson himself; for he says it belongs to the father's duty to protect his own son in all things, even while the grandfather is alive.
§47.10.17.19Idem Iulianus scribit filium non tantum ipsum agere debere, uerum procuratorem dare posse: alioquin, inquit, nisi ei permiserimus procuratorem dare, futurum est, ut, si ualetudine impediatur neque sit qui iniuriarum actionem exquatur, impediatur actio.
The same Julian writes that the son not only ought to sue himself, but can also appoint a procurator; otherwise, he says, unless we permit him to appoint a procurator, it will happen that, if he is prevented by ill health and there is no one to prosecute the action for injury, the action will be blocked.
§47.10.17.20Idem ait, et si nepoti facta sit iniuria et nemo sit, qui aui nomine agat, permittendum esse patri experiri, et is procuratorem dabit.
The same writer says that if an injury has been done to a grandson and there is no one to sue in the grandfather's name, the father must be permitted to bring the action, and he will appoint a procurator; for the power of appointing a procurator belongs to all who have an action in their own name.
omnibus enim, qui suo nomine actionem habent, procuratoris dandi esse potestatem: intellegi autem filium, inquit, familias suo nomine agere, cum patre cessante praetor ei agere permittat.
And he says that a son in power is understood to sue in his own name when the praetor permits him to sue in the absence of action by his father.
§47.10.17.21Si filius familias iniuriarum egerit, patri actio non competit.
If a son in power has brought the action for injury, the action is not available to the father.
§47.10.17.22Idem ait filio familias iniuriarum nomine actionem dari, quotiens nemo est, qui patris nomine experiatur, et hoc casu quasi patrem familiae constitui.
The same writer says that an action under the name of injury is given to a son in power whenever there is no one to sue in the father's name, and in this case he is established, as it were, as a father of a family.
quare siue emancipatus sit siue ex parte heres scriptus fuerit uel etiam exheredatus siue paterna hereditate abstinuerit, executionem litis ei dandam: esse enim perabsurdum, quem praetor manente patria potestate ad actionem admittendum probauerit, ei patri familias ultionem iniuriarum suarum eripi et transferri ad patrem, qui eum, quantum in ipso est, omiserit, aut, quod est indignius, ad heredes patris, ad quos non pertinere iniuriam filio familias factam procul dubio est.
Therefore, whether he has been emancipated, or has been written as heir for a part, or even disinherited, or has abstained from the paternal inheritance, the prosecution of the litigation must be given to him; for it is extremely absurd that the vengeance for his injuries should be snatched from him when he has become a father of a family—whom the praetor approved to be admitted to the action while paternal power was still lasting—and transferred to the father, who, as far as in him lay, neglected him, or, what is more unworthy, to the heirs of the father, to whom there is no doubt that the injury done to the son in power does not belong.