1Ulpianus, On the Edict, Book XII. The justice of this Edict is in no respect ambiguous, for it was framed to prevent the contracting parties from being deceived through the intervention of a false guardian. 1The following are the terms of the edict: “What is done by the authority (the Prætor says) of one who was not a guardian”. 2Many things are lacking in the terms of the Edict. For what if the party who was guardian should have no right to exert his authority, for example, if he should be insane, or was appointed for some other province. 3However, Pomponius states in the Thirtieth Book that sometimes, although the business has been transacted under the authority of someone who was not a guardian, this part of the Edict will not be applicable. For what if there are two guardians, one of whom is false, and the other genuine, and they should authorize an act, would the transaction be valid? 4Pomponius says in the Thirtieth Book that, even though this Edict does not specifically mention more than one false guardian, it, nevertheless, applies to the acts of several. 5Pomponius also says that, even though a ward transacts business under the authority of a person acting as guardian, this Edict will still apply, unless the Prætor shall have decreed that he will ratify what has been done under such authority, for then the act will be valid, on account of the support of the Prætor, and not by operation of law. 6The Prætor says: “If a ward should be ignorant that his guardian is not genuine, I will grant him complete restitution”. He does not grant relief to a ward who was aware of the fact, which is reasonable, because he voluntarily deceives himself.

2Paulus, On the Edict, Book XII. “If the ward should be ignorant that his guardian is not genuine”, Labeo holds that this applies where the ward has been informed of the fact, and in good faith refused to believe it.

3Ulpianus, On the Edict, Book XII. It is evident that such knowledge does not prejudice a party who is not in need of assistance; as, for example, where one ward transacts business with another, for as the act is void, his knowledge does not prejudice him.

4Paulus, On the Edict, Book XII. Relief is afforded to a minor under twenty-five years of age who had knowledge.

5Ulpianus, On the Edict, Book XII. Sometimes, however, although knowledge may cause prejudice, restitution should be granted where a party was compelled to join issue by order of the Prætor.

6Paulus, On the Edict, Book XII. In any transaction, the knowledge of a ward should not be taken into account, but only that of his guardian should be considered. Therefore, even if security has been furnished the ward, it is held to be better for the property of the latter to be restored to him, than for him to depend upon the uncertain result of the security. This Julianus gave as his opinion in any case where a ward has been defrauded.

7Ulpianus, On the Edict, Book XII. Finally, the Prætor says: “I will grant an action against a party who, not being a guardian, is said to have fraudulently authorized the act of a ward; and judgment shall be rendered against him for the value of the property in question”. 1A guardian cannot always be sued, nor is it sufficient for him to have knowingly authorized a transaction, but he also must have acted in bad faith. What would be the result if he were forced to grant his authority, or was induced to do so through fear: ought he not to be excused under such circumstances? 2Where the Prætor says: “The value of the property in question”. I do not think that the penalty, but merely the true amount lost is referred to. 3Pomponius very properly states in the Thirtieth Book that the account of the expenses which the plaintiff has been forced to incur by bringing this action should also be included in the judgment. 4Where there are several false guardians, and restitution is made by one of them, the others will be released, but this is not accomplished by the mere selection of one by the plaintiff.

8Paulus, On the Edict, Book XII. Hence Sabinus says that where the plaintiff did not recover the entire amount from one of them, he should not be refused recourse against the others for the deficiency.

9Ulpianus, On the Edict, Book XII. With reference to this action, Pomponius states in the Thirty-first Book that it can be granted against anyone who acts in bad faith, in order to induce another, who is ignorant of the fact, to authorize a transaction by his ward. 1Labeo says that actions of this kind in factum can be brought by heirs and their successors, but that they will not lie against them, nor can they be brought after the expiration of a year, since they punish an act, and are based upon fraud; and that they become noxal actions when instituted against parties who are subjected to the authority of others.

10Gaius, On the Provincial Edict, Book IV. Where an action is brought against a ward on account of a false guardian, and, in the meantime, the term prescribed by law has elapsed, or the property has been acquired by usucaption, the guilty party must sustain all the inconvenience which may arise, just as if he were a genuine guardian, and suit had been brought against him within the prescribed time.

11Ulpianus, On the Edict, Book XXXV. A false guardian who grants authority to a minor of twelve or fourteen years of age to make a contract shall be liable to an action in factum on the ground of fraud, no matter what his condition may be, whether he is his own master, or under the control of another. 1He who fraudulently grants authority to a minor will be liable under this Edict. 2Moreover, anyone who authorizes a daughter under paternal control to enter into a contract is liable. The same rule of law applies where anyone acting as guardian authorizes a female slave to borrow money; for in all these instances the contracting party is deceived by the agency of the guardian, for he would not have contracted with the minor without the intervention of the authority of the guardian. 3Julianus in the Twenty-first Book of the Digest discusses the point whether this action should be granted against a father who gave his daughter in marriage, while she was under twelve years of age. The weight of authority is that a father is to be excused who desired to introduce his daughter too soon into the family of her husband, for in doing so he is held to have acted rather from an excess of affection, than through malice. 4Julianus thinks, however, that if the daughter should die before reaching the age of twelve years, after having received her dowry, and he who was entitled to it had acted in bad faith, the husband can be barred by an exception on the ground of fraud when he sues for the dowry, in cases where he would have been benefited to the extent of all, or a part of it, if the marriage had been valid.

12The Same, Opinions, Book XII. Where a party, having been interrogated in court, answers that he is a guardian, he will not be liable to any action for making this statement. Where, however, he was not a guardian, and the minor was in any way defrauded through his answer, an equitable action should be granted against him.