tion were to take effect, the gist of which was that the thing might be sold after two years had elapsed from the time when the creditor gave the debtor notice to pay, and that after two more years the creditor, if no purchaser could be found, should be considered the owner. (C. viii. 34. 3.) Tutors and curators might, in certain cases, alienate the goods of their pupils and of those committed to their care; but, at any rate in the later times of law, they had to obtain the permission of a magistrate for the alienation of rural immoveables. (See C. v. 37. 22.) 2. Nuncadmonendi sumus, neque pupillum neque pupillam ullam rem sine tutoris auctoritate alienare posse. Ideoque si mutuam pecuniam alicui sine tutoris auctoritate dederit, non contrahit obligationem, quia pecuniam non facit accipientis, ideoque vindicari nummi possunt, sicubi extent sed si nummi, quos mutuos dedit, ab eo, qui accepit, bona fide consumpti sunt, condici possunt, si mala fide, ad exhibendum de his agi potest. At ex contrario omnes res pupillo et pupillæ sine tutoris auctoritate recte dari possunt. Ideoque si debitor pupillo solvat, necessaria est tutoris auctoritas: alioquin non liberabitur. Sed etiam hoc evidentissima ratione statutum est in constitutione, quam ad Cæsareenses advocatos ex suggestione Triboniani, viri eminentissimi, quæstoris sacri palatii nostri, promulgavimus, qua dispositum est, ita licere tutori vel curatori debitorem pupillarem solvere, ut prius sententia judicialis sine omni damno celebrata hoc permittat. Quo subsecuto, si et judex pronuntiaverit et debitor solverit, sequatur hujusmodi solutionem plenissima securitas. Sin autem aliter quam disposuimus solutio facta fuerit et pecuniam salvam habeat pupillus aut ex ea locupletior sit et adhuc eandem summam pecuniæ petat, per exceptionem doli mali summoveri poterit: quodsi aut male consumpserit aut furto amiserit, nihil proderit debitori doli mali exceptio, sed nihilo minus damnabitur, quia temere sine tutoris auctoritate et non secundum nostram dispositionem solverit. Sed ex diverso pupilli vel pupillæ solvere sine tutore auctore non possunt, quia id, quod solvunt, non fit accipientis, cum scilicet nullius rei alienatio 2. It must next be observed, that no pupil of either sex can alienate anything without the authority of a tutor. If, therefore, a pupil, without the tutor's authority, lends any one money, the pupil does not contract an obligation; for he does not make the money the property of the receiver, and the pieces of money may be claimed by vindication, if they still exist. But supposing these pieces which the pupil has lent are consumed by the borrower, then, if they are so bona fide, a personal action may be brought; if mala fide, an action ad exhibendum. On the contrary, the pupil of either sex may acquire anything whatsoever without the authority of the tutor; and therefore when a debtor pays a pupil, the debtor must have the authority of the tutor, or he does not free himself from the debt./ And we have, for very obvious reasons, declared by a constitution, published to the advocates of Cæsarea on the suggestion of the very eminent Tribonian, quæstor of our sacred palace, that the debtor of a pupil may make payment to the tutor or curator, first receiving permission by the sentence of a judge, obtained free of all expenses; and if these forms are observed, a payment made according to the sentence of the judge will give the debtor the most complete security. But if payment is made not according to the mode we have sanctioned, the pupil who has the money still safe in his possession, or has been made richer by it, may, if he demands again the same sum, be repelled by an exception of dolus malus. But if he has spent the money uselessly, or lost it by theft, the debtor cannot profit by the exception of dolus malus, and he will be condemned to pay over again, because he has paid in a rash manner, eis sine tutoris auctoritate concessa est. without the authority of the tutor, and has not conformed to our rules. On the other hand, pupils of either sex cannot pay without the authority of the tutor, because that which they pay does not thereby become the property of the person who receives it, as they are incapable of alienating anything without the authority of the tutor. GAI. ii. 80. 82–84; C. v. 37. 25; D. xlvi. 3. 14. 8. The pupil might make his condition better, but not worse. (See Bk. i. Tit. 21.) He could not transfer the property in anything belonging to him, but he could acquire the property in anything transferred to him. Three illustrations of this doctrine are given. 1. The pupil could not lend anything under the contract called mutuum, the essence of which was that the thing lent became the property of the borrower, who bound himself to give back a thing of equal value. (See Bk. iii. Tit. 14.) If the pupil attempted to lend a thing in this way, the thing lent could be recovered by vindication, if it was possible that the actual thing should be restored; if not, its value could be recovered by a personal action (condictio) against the borrower; or if the borrower had been guilty of mala fides, an actio ad exhibendum would lie, that is, the borrower was called upon to produce the thing borrowed; and on his being found unable to do so, he was condemned to pay not only the value of the thing, but damages to compensate for the injury inflicted. 2. If the pupil was a debtor and paid without authorisation money to a creditor, he could not transfer the property in the pieces of money paid, and had a real action to get them back, if the creditor still had them; if not, the pupil had the same remedies as just stated in regard to a mutuum, except that if he brought a condictio against a creditor, who had bona fide spent the money, and the creditor could claim the same amount of money for the debt due to him, the Roman jurists considered that instead of these cross actions the debt of the pupil ought to be considered to be extinguished. (D. xxvi. 8. 9. 2.) 3. If the debtor made a payment to the pupil without the authorisation of the tutor, that which he paid became the property of the pupil; and as the pupil could not make his condition worse, he could not extinguish debts due to him; and thus the debt was still owing, although the pupil retained what was paid him. The debtor might still be sued for what he owed, and he could only repel the action by a plea of dolus malus to the extent to which the pupil then had the money paid in hand, so that if the pupil had spent it all the debtor would have to pay over again. (G. ii. 84.) If the tutor authorised the payment, the debt was extinguished; but still the creditor was not quite safe; the pupil had a right to receive from the tutor the money paid; and if he could not obtain it from him, the prætor would, under certain circumstances, grant a restitutio in integrum (see note on introductory paragraph of Bk. i. Tit. 23), and the creditor might then be obliged to pay over again, in order that the pupil might be kept free from all loss. It was to guard against this that Justinian, in the constitution alluded to in the text, provided a means whereby the creditor should have plenissima securitas. TIT. IX. PER QUAS PERSONAS NOBIS ADQUIRITUR. Adquiritur nobis non solum per nosmet ipsos, sed etiam per eos, quos in potestate habemus : item per eos servos, in quibus usumfructum habemus: item per homines liberos et servos alienos, quos bona fide possidemus. De quibus singulis diligentius dispiciamus. We acquire not only by ourselves, but also by those whom we have in our power; also by slaves, of whom we have the usufruct; and by those freemen and slaves belonging to others whom we possess bona fide. Let us examine separately these different cases. GAI. ii. 86. The rule of law was, that no one could acquire through another person; but if persons in the power of another acquired anything, that which they acquired became, by the mere force of their position, the property of the person in whose power they were; and thus the rule may be, perhaps, more accurately expressed by saying that nothing could be acquired per extraneam personam, i.e. through a person who was not in the familia of the acquirer. 1. Igitur liberi vestri utriusque sexus, quos in potestate habetis, olim quidem, quidquid ad eos pervenerat (exceptis videlicet castrensibus peculiis), hoc parentibus suis adquirebant sine ulla distinctione : et hoc ita parentum fiebat, ut esset eis licentia, quod per unum vel unam eorum adquisitum est, alii filio vel extraneo donare vel vendere vel quocumque modo voluerant, applicare. Quod nobis inhumanum visum est et generali constitutione emissa et liberis pepercimus et patribus debitum reservavimus. Sancitum etenim a nobis est, ut, si quid ex re patris ei obveniat, hoc secundum antiquam observationem totum parenti adquirat (quæ enim invidia est, quod ex patris occasione profectum est, hoc ad eum reverti?): quod autem ex alia causa sibi filiusfamilias adquisivit, hujus usumfructum quidem patri adquirat, dominium autem apud eum remaneat, ne, quod ei suis laboribus vel pro 1. Formerly, all that your children under your power of either sex acquired, excepting castrensia peculia, was without distinction acquired for the benefit of their ascendants; so much so, that the paterfamilias who had thus acquired anything through one of his children, could give or sell, or transfer it in any way he pleased to another child or to a stranger. This appeared to us very harsh, and by a general constitution we have relieved the children, and yet reserved for the ascendants all that was due to them. We have declared that all which the filiusfamilias obtains by means of the fortune of the father, shall, according to the old law, be acquired entirely for the father's benefit: for what hardship is there in that which comes from the father returning to him? But of everything that the filiusfamilias acquires in any other way, he shall acquire the usufruct for the father, but the son shall retain the ownership, so that the son may not have the mortifi spera fortuna accessit, hoc in alium perveniens, luctuosum ei procedat. cation of seeing that becoming the property of another, which he himself has gained by his labour or good fortune. GAI. ii. 87; C. vi. 61. 6. The filiusfamilias could not, in the strict law of Rome, have any property of his own. Sometimes, however, the father permitted the son to have what was called a peculium, that is, a certain amount of property placed under his exclusive control. This peculium remained in law the property of the father, but the son had the disposition and management of it by his father's permission, and as long as it remained in the son's possession it was, as far as regarded third persons, exactly like property really belonging to the son only, that is, they could sue and recover from him to the extent of his peculium. (See Tit. 12. pr. of this Book.) In the early times of the Empire a filiusfamilias came to have, under the name of castrense peculium, property quite independent of his father. This castrense peculium consisted of all that was given to a son when setting out upon military service, or acquired while that service lasted. This belonged to the son as completely as if he had been sui juris, and he had full power of disposing of it either during his lifetime or by testament. Filiifamilias in castrensi peculio vice patrumfamiliarum funguntur. (D. xiv. 6. 2.) If, however, he did not choose to exercise his power of disposing of it by testament, his father took it at his death, not as succeeding to it ab intestato, but as the claimant of a peculium. (See Tit. 12. pr.) A further benefit was extended to the filiusfamilias by the institution of the quasi-castrense peculium, a privilege given to certain civil functionaries, corresponding to that given by the castrense peculium to soldiers. Constantine, by a constitution (C. xii. 31), placed on the footing of the castrense peculium things which a filiusfamilias, who was an officer of the palace, received from the emperor or gained by his own economy. The same advantage was subsequently extended to many other functionaries, as well as to advocates and certain ecclesiastical dignitaries. The quasi-castrense peculium must have existed in the time of Ulpian (D. xxxvi. 1. 1. 6; xxxvii. 13. 3. 5), unless the passages in the Digest in which he alludes to it are interpolated, but under what form it then existed we do not know. In one respect it slightly differed from the castrense peculium; for the power of disposing of it by testament did not always accompany it, but was only given to the more privileged classes of those who were allowed to have such a peculium. Justinian, however, altered this, and gave the power of disposing of it by testament to every one who had a quasicastrense peculium. (See Tit. 11. 6.) Constantine also introduced another kind of peculium, termed the peculium adventitium. This consisted of everything received by a filiusfamilias in succeeding, whether by testament or not, to his mother. (C. vi. 60. 1.) Subsequent emperors included in it all received by succession or as a gift from maternal ascendants (C. vi. 60. 2), or by one of two married persons from the other (C. vi. 60. 1); and Justinian, as we learn from the text, included under the peculium adventitium all that came to the son from any other source than from the father himself. The father had the usufruct of the peculium adventitium, and it was only the ownership that was held by the son. The peculium which came to the son as part of the father's property, and which continued to belong to the father, has been termed by commentators profectitium, because it comes (proficiscitur) from the father. The peculium in the time of Justinian, therefore, if profectitium, belonged to the father; in all other cases it belonged to the son; but the father had the usufruct of the peculium adventitium, while the son had as full power over the castrense or quasi-castrense peculium as if he had been sui juris. 2. Hocque a nobis dispositum est et in ea specie, ubi parens emancipando liberum ex rebus, quæ adquisitionem effugiunt, sibi partem tertiam retinere, si voluerat, licentiam ex anterioribus constitutionibus habebat, quasi pro pretio quodammodo emancipationis, et inhumanum quiddam accidebat, ut filius rerum suarum ex hac emancipatione dominio pro parte defraudetur et, quod honoris ei ex emancipatione additum est, quod sui juris effectus est, hoc per rerum deminutionem decrescat. Ideoque statuimus, ut parens pro tertia bonorum parte dominii, quam retinere poterat, dimidiam non dominii rerum, sed ususfructus retineat: ita itenim et res intactæ apud filium remanebunt et pater ampliore summa fruetur, pro tertia dimidia potiturus. 2. We have also made some regulations with respect to the power which under former constitutions a father had, when emancipating his children, of deducting a third part from the things over which he had no right of acquisition, as if this was the price of the emancipation. It seemed very hard that the son should thus be deprived by emancipation of a third part of his property, and that what he gained in honour by being emancipated, as being thus made sui juris, should be impaired by a diminution of his property. We have therefore enacted that the father, instead of retaining a third as owner, shall retain half not as owner but as usufructuary. Thus the ownership in the whole will remain with the son unimpaired, while the father will enjoy the benefits of a larger portion, the half, namely, instead of the third. C. vi. 61. 6. 3. The usufruct of the father over things, the ownership of which, as part of the peculium adventitium, belonged to the son, would be lost by emancipation. It was as an equivalent for this that the property in one-third of these things was given to the father on emancipation. Justinian substitutes the usufruct of one-half for the ownership of one-third. 3. Item vobis adquiritur, quod servi vestri ex traditione nanciscuntur sive quid stipulentur vel ex qualibet alia causa adquirunt. Hoc enim vobis et ignorantibus et invitis obvenit. Ipse enim servus, qui in potestate alterius est, nihi' suum 3. So, too, all that your slaves acquire by tradition, or stipulation, or in any other way, is acquired for you; and that even without your knowledge and against your wishes. slave being in the power of any one cannot himself have anything as his For the |