Authorization of the Tutor. 93 si pupillus idem fecerit, quia eam pecuniam non facit accipientis, nullam contrahit obligationem. unde pupillus vindicare quidem nummos suos potest, sicubi extent, id est intendere suos ex iure Quiritium esse; mala fide consumtos vero ab eodem repetere potest quasi possideret. unde de pupillo quidem quaeritur, an nummes quoque quos mutuos dedit, ab eo qui accepit bona fide alienatos petere possit, quoniam is scilicet accipientis eos nummos facere videtur. (83.) At ex contrario res tam mancipi quam nec mancipi mulieribus et pupillis sine tutoris auctoritate solvi possunt, quoniam meliorem condicionem suam facere iis etiam sine tutoris auctoritate concessum est. (84.) Itaque si debitor pecuniam pupillo solvat, facit quidem pecuniam pupilli, sed ipse non liberatur, quia nullam obligationem pupillus sine 82. But if a pupil have done the same, since he does not make the money the property of the recipient, he contracts no obligation. Therefore, the pupil can recover his money by vindication, as long as it is unconsumed, i. e. claim it to be his own ex jure Quiritium: and further, if it have been fraudulently consumed he can reclaim it from the recipient, just as though he were still in possession of it. Whence arises this question with regard to a pupil, viz. whether he can bring an action for money he has lent by way of mutuum against him who received it from him, after it has been transferred in good faith to another person; for the alienor seems to make the money the property of the recipient'. 83. But, on the other hand, both res mancipi and res nec mancipi can be paid to women and pupils without the authorization of the tutor, because they are allowed to make their condition better even without their tutor's authorization. 84. Therefore, if a debtor pay money to a pupil, he makes the money the property of the pupil, but is not himself freed from obligation3, because the pupil can dissolve no obligation without the 1 The case is one of bona fide alienation, and it is only malâ fide alienation or consumption which draws with it the necessity of making compensation. 2 Solvere means to discharge an obligation. It is difficult to hit upon a precise equivalent in English, because the solutio spoken of in this paragraph may be either dare, facert, or praestare. This does not mean that the debtor would have to pay over again in all cases, as we see from the concluding paragraph of the section. The debtor having paid a person not fit to be entrusted with money, was liable in case any loss took place, or if the pupil wastefully expended what he had received. Just. st. 11. 8. 2. 94 Adquisitio per alium. tutoris auctoritate dissolvere potest, quia nullius rei alienatio ei sine tutoris auctoritate concessa est. set tamen si ex ea pecunia locupletior factus sit, et adhuc petat, per exceptionem doli mali summoveri potest. (85.) Mulieri vero etiam sine tutoris auctoritate recte solvi potest: nam qui solvit, liberatur obligatione, quia res nec mancipi, ut proxume diximus, a se dimittere mulier et sine tutoris auctoritate potest : quamquam hoc ita est, si accipiat pecuniam; at si non accipiat, sed habere se dicat, et per acceptilationem velit debitorem sine tutoris auctoritate liberare, non potest. 86. Adquiritur autem nobis non solum per nosmet ipsos, sed etiam per eos quos in potestate manu mancipiove habemus ; item per eos servos in quibus usumfructum habemus; item per homines liberos et servos alienos quos bona fide possidemus. de quibus singulis diligenter dispiciamus. 87. Igitur quod liberi nostri quos in potestate habemus, item quod servi nostri mancipio accipiunt, vel ex traditione nanciscuntur, sive quid stipulentur, vel ex aliqualibet causa adauthorization of the tutor, since without his tutor's authorization he is not allowed to alienate anything. But nevertheless if he have been made richer by means of this money, and yet sue for it again, he can be resisted by an exceptio doli mali. 85. Payment, however, can be legally made to a woman even without the authorization of her tutor: for he who pays is freed from obligation, since, as we have said above, a woman can part with res nec mancipi even without her tutor's authorization: although this is the case only if she receive the money : but if she do not receive it, but say she has it, and desire to free the debtor by acceptilatio', without the authorization of her tutor, she cannot do so. 86. Property is acquired for us not only by our own means but also by means of those whom we have in potestas, manus or mancipium: likewise, by means of those slaves in whom we have an usufruct: likewise, by means of free men and slaves of others whom we possess in good faith. These cases let us consider carefully one by one. 87. Whatever, therefore, our children, whom we have in potestas and, likewise, whatever our slaves receive in mancipium, or obtain by delivery, or stipulate for3, or acquire in 1 III. 169. 2 Ulpian, XIX. 18. 3 III. [14. Possessio per alium. 95 quirunt, id nobis adquiritur: ipse enim qui in potestate nostra est nihil suum habere potest, et ideo si heres institutus sit, nisi nostro iussu, hereditatem adire non potest; et si iubentibus nobis adierit, hereditatem nobis adquirit proinde atque si nos ipsi heredes instituti essemus. et convenienter scilicet legatum per eos nobis adquiritur. (88.) dum tamen sciamus, si alterius in bonis sit servus, alterius ex iure Quiritium, ex omnibus causis ei soli per eum adquiri cuius in bonis est. (89.) Non solum autem proprietas per eos quos in potestate habemus adquiritur nobis, sed etiam possessio: cuius enim rei possessionem adepti fuerint, id nos possidere videmur. unde etiam per eos usucapio procedit. 90. Per eas vero personas quas in manu mancipiove habemus, proprietas quidem adquiritur nobis ex omnibus causis, sicut per eos qui in potestate nostra sunt: an autem possessio any way at all, is acquired for us: for he who is in our potestas can have nothing of his own; and therefore if he be instituted heir', he cannot enter on the inheritance except by our command; and if he enter at our command, he acquires the inheritance for us just as though we had ourselves been instituted heirs. And in like manner, undoubtedly, a legacy is acquired for us by their means. 88. Let us, however, take notice that if a slave belong to one man in bonis and to another ex jure Quiritium, acquisition is in all cases made by his means for that one only to whom he belongs in bonis". 89. And not only is ownership acquired for us by means of those whom we have in potestas, but possession also: for of whatever thing they have obtained possession, that thing we are considered to possess. Hence also usucapion takes effect through their means3. 90. Next, by means of those persons whom we have in manus or mancipium, ownership, no doubt, can be acquired for us in all cases, just as it can by those who are in our potestas: but whether possession can be acquired is generally ques 1 Ulpian, XIX. 19. 2 II. 40. Ulp. XIX. 20. The owner in bonis has the potestas. I. 54. 3 Possession, however, is not acquired for another without that : other's knowledge and consent, although property may be for the animus domini must exist not only in personal but also in derivative possession, such as that of a slave for his master. See Savigny, On Poss. § 28. 96 Possessio per alium. adquiratur, quaeri solet, quia ipsas non possidemus. (91.) De his autem servis in quibus tantum usumfructum habemus ita placuit, ut quidquid ex re nostra vel ex operis suis adquirunt, id nobis adquiratur; quod vero extra eas causas, id ad dominum proprietatis pertineat. itaque si iste servus heres institutus sit legatumve quod ei datum fuerit, non mihi, sed domino proprietatis adquiritur. (92.) Idem placet de eo qui a nobis bona fide possidetur, sive liber sit sive alienus servus. quod enim placuit de usufructuario, idem probatur etiam de bona fide possessore. itaque quod extra duas istas causas adquiritur, id vel ad ipsum pertinet, si liber est, vel ad dominum, si servus sit. (93) Sed si bonae fidei possessor usuceperit servum, quia eo modo dominus fit, ex omni causa per eum sibi adquirere potest: usufructuarius vero usucapere non potest, primum quia non possidet, sed habet ius utendi et fruendi; deinde quia scit tioned, because we do not possess the persons themselves'. 91. With regard to slaves in whom we have merely an usufruct, the rule is that whatever they acquire by means of our substance or their own labour is acquired for us: but whatever from other sources than these, belongs to the owner of the property in them. Therefore, if such a slave be instituted heir or any legacy be left to him, it is acquired not for me but for the owner of the property. 92. The law is the same as to one who is possessed by us in good faith, whether he be free or the slave of another. For whatever holds good as to an usufructuary also holds good as to a possessor in good faith. Therefore, whatever is acquired from causes other than these two, either belongs to the man himself, if he be free, or to his master, if he be a slave. 93. But if a possessor in good faith have got the slave by usucapion, since he thus becomes master, he can acquire by his means in every case: but an usufructuary cannot get by usucapion. firstly because he does not possess but has the right of usufruct, and secondly because he knows the slave to be 1 Savigny points out (Treatise on Possession, p. 230) that if we could only acquire derivative possession through persons of whom we ourselves have possession, the father could not acquire through the son, nor the usufructuary through the slave in whom he had the usufruct 2 Ulpian, XIX. 21. Bona fide possessio. 97 alienum servum esse. (94.) De illo quaeritur, an per eum servum in quo usumfructum habemus possidere aliquam rem et usucapere possumus, quia ipsum non possidemus. Per eum vero quem bona fide possidemus sine dubio et possidere et usucapere possumus. loquimur autem in utriusque persona secundum distinctionem quam proxume exposuimus, id est si quid ex re nostra vel ex operis suis adquirant, id nobis adquiritur. (95.) Ex his apparet per liberos homines, quos neque iuri nostro subiectos habemus neque bona fide possidemus, item per alienos servos, in quibus neque usumfructum habemus neque iustam possessionem, nulla ex causa nobis adquiri posse. et hoc est quod dicitur per extraneam personam nihil adquiri posse, excepta possessione; de ea enim quaeritur, anne per liberam personam nobis adquiratur. another's. 94. On the following point a question arises, viz. whether we can possess and get an usucaptive title to anything by means of a slave in whom we have the usufruct', since we do not possess the slave himself. There is, however, no doubt that we can both possess and get by usucapion by means of a man whom we possess in good faith. But in both instances we are speaking with a reference to the qualification which we laid down just above, viz. that it is only what they acquire by our substance or their own work, which is acquired for us. 95. Hence it appears that in no case can anything be acquired for us by means of free men whom we neither have subject to our authority nor possess in good faith, nor by the slaves of other men in whom we have neither usufruct nor lawful possession. And hence comes the saying that nothing can be acquired for us through a stranger, except possession; for as to this it is questionable whether acquisition of it cannot be made for us by a free person. 1 According to D. 41. 2. 1. 8 and D. 41. 2. 49. pr. it is quite clear that the usufructuary could acquire through the slave in whom he had the usufruct. It may be that the law as laid down in those passages by Paulus and Papirius was not so laid down until after Gaius's time, when, as we see, the question was a doubtful one. 2 This passage in the text, it will be observed, is partly filled in conjecturally. To this circumstance alone can we attribute the undecided manner in which the possibility of acquiring by a free agent is asserted: for the fact of such acquisition being allowable is certain. The principal |