Corpus iurisprudentiae Romanae

1 Ulpianus, On the Edict, Book XI. The Prætor proposed the following Edict in compliance with the principles of natural equity, by which he assumes protection of minors; for, as is known to every one, the judgment of persons of this age is weak and indecisive, exposed to many snares, and subject to many disadvantages, and therefore the Prætor promised them aid by this Edict and relief from deception. 1The Prætor says in the Edict: “When any transaction is said to have taken place with a minor under twenty-five years of age, I will examine what was done”. 2It appears that the Prætor promises assistance to minors under twenty-five years of age, for, after that time, manly vigor is held to have been established. 3For this reason, minors at present are subjected to the direction of curators until that age; nor should the administration of their own affairs be committed to them before that time, even though they may be capable of transacting them properly.

2 The Same, On the Lex Julia et Papia, Book XIX. Nor will a minor obtain possession of his property from his curators any sooner on account of his having children; for what is provided by the law, namely: that a year is remitted for every child, the Divine Severus states has reference to capacity for public office, and not for the management of property.

3 The Same, On the Edict, Book XI. Finally, the Divine Severus and our Emperor have interpreted the decrees of consuls and governors of this description as dictated by their own interest, for they themselves very rarely indulged minors in the administration of their own affairs, contrary to the established custom; and this is our practice to-day. 1Where anyone makes a contract with a minor, and the contract takes effect at some time after he has attained his majority, shall we consider the beginning or the end of the transaction? It is held, and has been established by a constitution that where a party confirms what he did while a minor, there is no ground for restitution. For this reason, Celsus, in the Eleventh Book of the Epistles, and in the Second of the Digest, treats this question in an able manner with reference to a case in which he was consulted by the Prætor Flavius Respectus. A minor under twenty-five years, and who, perhaps, was in his twenty-fourth year, had begun an action on guardianship against the heir of his guardian, and the result was that the said heir of the guardian was released before the trial was terminated; as the plaintiff had already attained his majority of twenty-five years and therefore complete restitution was applied for. Celsus, accordingly, advised Respectus that the former minor could not readily obtain complete restitution; but if it were proved to him that this had been brought about by the craft of his adversary in order that he should be discharged as soon as the minor attained his majority, restitution could then be granted: “for,” he said, “the minor only appeared to have been overreached on the last day of the trial, and the entire affair had evidently been planned so that the guardian might be discharged after the minor had attained his majority”. Nevertheless, he admits that where only slight suspicion exists that his adversary had been guilty of deception, he could not obtain complete restitution. 2I know, also, that once the following question arose. A minor under twenty-five years of age meddled with the estate of his father, and, having attained his majority, exacted payment from certain of his father’s debtors, and then demanded complete restitution in order to enable him to reject the estate. It was argued on the other side that after he became of age he had approved of what he had done while a minor; and it is our opinion that complete restitution should be granted for the reason that the commencement of the transaction should be considered. I am of the opinion that the same rule would apply if he had entered upon the estate of a stranger. 3It should also be taken into consideration with reference to the birth of a man twenty-five years of age, whether we should say that he is still a minor on his birthday before the hour at which he was born, so that if he has been deceived he may obtain restitution; and if he has not yet fully attained that age, it must be held that the time should be counted from one moment to another. Hence, if he was born in a bissextile year, Celsus thinks that it makes no difference whether he was born on the earlier or on the later day, but the two days are considered as one, and the latter is intercalated. 4In the next place, it must be considered whether relief should be given only to those who are their own masters, or also to those who are under the control of others; and the point which causes doubt is, that if anyone should say that the sons of a family are entitled to relief in matters relating to their peculium, the result would be that the benefit would accrue through them to those who are of age, that is to say, to their fathers, which was, at no time, intended by the Prætor; for the latter promised assistance to minors and not to those who had attained their majority. I, however, think that the option of those who hold that the son of a family, who is a minor under twenty-five years of age, is entitled to complete restitution only in matters in which he himself has an interest; for example, where he is bound by some contract. Thus, if he is bound by the command of his father, the latter can certainly be sued for the entire amount, and, so far as the son is concerned, (since he himself can be sued to the extent of his solvency whether he is still under the control of his father, or has been emancipated, or disinherited, and, indeed, while he is living under the control of his father, an action to enforce a judgment can be brought against him), he should apply for relief, if he himself is sued. But whether this relief will also benefit his father, as sometimes happens in the case of a surety, is a matter to be considered, and I do not think that it will. Therefore, if suit is brought against the son, he can apply for relief, though if a creditor sues his father, no relief can be obtained except where money is loaned; and also, in this instance, if he borrowed the money by the order of his father no relief can be given him. Hence, if he made a contract without the order of his father, and was overreached, and an action De Peculio is brought against the father the son cannot obtain restitution, but if the latter is sued he can obtain it; nor does any difficulty arise on account of the son having an interest in the peculium, for the interest of the father is greater than that of the son, although in some cases the peculium belongs to the son; for example, where the property of the father is seized by the Treasury on account of a debt; for, in this instance, according to the Constitution of Claudius, the peculium of the son is separated from it. 5For this reason, where the daughter of a family has been deceived with respect to her dowry, when she gave her consent to the stipulation of her father, entered into subsequently, that the dowry should be returned, or some one be found who would stipulate for it; I am of the opinion that she should be granted restitution, since the dowry is the personal property of the daughter herself. 6Where a minor under twenty-five years of age has given himself to be abrogated, and alleges that he was deceived in the arrogation; for example, that he, being a man of property, was arrogated by a party for the purpose of robbery; I hold that he should be heard if he applies for complete restitution. 7Where a legacy, or a trust is bequeathed to the son of a family, to be paid after the death of his father, and he is imposed upon; for instance, where he gave his consent to the agreement of his father that suit should not be brought for the legacy; it may be said that he is entitled to complete restitution, since he has an interest, by reason of his expectation of the legacy to which he is entitled after the death of his father. But where something is bequeathed to him, which relates to him personally, as for instance, a command in the army; it must be held that he is entitled to complete restitution, for it is his interest not to be deceived, since he does not acquire this for his father but is to have it himself. 8Where an heir is appointed on condition that he shall be emancipated by his father within a hundred days, he should notify his father at once; and if he did not do so when he was able, and his father would have emancipated him if he had known of it, it must be held that he is entitled to complete restitution, if his father is ready to emancipate him. 9Pomponius adds that in those instances in which the son of a family can obtain restitution in a matter in which his peculium, is concerned, his father can, as the heir of his son, claim complete restitution after his death. 10But where the son of a family has a castrense peculium, there is no question that in matters relating to the castrense peculium he will be entitled to complete restitution; just as if he had been deceived with respect to his own patrimony. 11A slave who has not reached the age of twenty-five years cannot, under any circumstances, obtain restitution, as it is the person of his master which is considered, and he must blame himself where he entrusted anything to a minor. Wherefore, if he makes any contract through a minor who has not reached the age of puberty, the same rule applies; as Marcellus states in the Second Book of the Digest. And if the free administration of his peculium should be granted to a slave who is a minor, his master, if he is of age, cannot obtain restitution on this account.

4 Africanus, Questions, Book VII. For, whatever a slave does in a case of this kind, he is understood to do with the consent of his owner; and this will appear more clearly if the question arises with reference to an institorian action, or where a person over twenty-five years of age directed a minor to transact some business, and the latter was deceived while doing so.

5 Ulpianus, On the Edict, Book XI. Where, however, the slave was one who had a right to immediate freedom under a trust, and was imposed upon, as he suffered through default, it can be stated that the Prætor will be obliged to grant him relief.

6 The Same, On the Edict, Book X. Relief is afforded by complete restitution of minors under twenty-five years of age not only when they sustain some loss of property, but also when they are interested in not being annoyed with lawsuits and expense.

7 The Same, On the Edict, Book XI. The Prætor says: “Any transaction which is said to have taken place”. We understand the term “transaction” to mean one of any kind whatsoever, whether it is a contract, or whether it is not. 1Thus, if a minor purchases anything, if he sells anything, if he enters a partnership, or borrows money and is cheated, he will have relief. 2Also, if he has been paid money by a debtor of his father or by one of his own, and loses it, it must be held that he is entitled to relief; as the business was transacted with him. And, therefore, if a minor brings suit against the debtor, he should have curators present, in order that he may be paid, for otherwise a debtor cannot be compelled to pay him. At present, however, it is customary to deposit the money in a temple (as Pomponius states in the Twenty-eighth Book), so that the debtor may not be oppressed by the payment of excessive interest, or a minor creditor lose his money; or payment be made to the curators, if there are any. It is also allowed a debtor, by an Imperial Constitution, to compel a minor to have curators appointed for himself. But what if the Prætor should order the money to be paid to a minor without the intervention of curators, and it should be paid? It may be doubted whether he will be secure. I am of the opinion, however, that if he was compelled to pay after pointing out that the creditor was a minor, he would be free from responsibility; unless someone might hold that he ought to appeal on the ground that he had suffered an injury. I believe, however, that the Prætor would not hear a minor if he were to apply for complete restitution in a case of this kind. 3Relief is not only granted to a minor under these circumstances, but also where he intervenes in obligations contracted by others; for example, where he binds himself, or encumbers his property as a surety. Pomponius, however, appears to agree with those who make a distinction between a minor where an arbiter has appointed a party for the purpose of approving of sureties, and where his adversary has accepted him. It seems to me that, in all these instances, if the party is a minor, and proves that he has been circumvented, he will be entitled to relief. 4Relief is also granted in trials, whether the party who was overreached, brought suit, or was sued. 5Where, however, a minor has entered upon an estate, which is not sufficient to pay the creditors, he is given relief that he may be able to reject it; for in this instance also, he is deceived. The same rule applies in the case of the possession of property or any other succession. Not only the son who meddled with the estate of his father will obtain restitution, but likewise any other minor belonging to the family will also be entitled to it, as for instance, a slave who is appointed heir and granted his freedom; for it must be held that if he meddled with the affairs of the estate, he can be relieved on the ground of his age, so that he may have a separation of his own property. It is evident that if he obtains restitution after entering upon the estate, that he must deliver up any portion of the same which has been mingled with his own property, and has not been lost through the infirmity of his youth. 6At the present time, it is the practice for minors to be relieved where they have failed to obtain profit. 7Pomponius also stated in the Twenty-eighth Book, that where a person rejects a legacy without anyone being guilty of fraud, or is taken advantage of in making a choice of two legacies, having selected the one of inferior value; or where he promises to give a man one or the other of two things, and gives him the more valuable one, he is entitled to relief, and it should be granted him. 8The question arose with respect to the point which states that relief must be granted to minors, even where they do not obtain profit, as where the property of a minor was sold, and someone comes forward who is willing to pay more for it; whether complete restitution should be made, on account of the profit which he failed to obtain? The Prætors grant restitution every day under these circumstances, so that new bids may be offered. They do the same thing with regard to property which ought to be preserved for minors. This, however, should be done with great care, otherwise no one would attend the sales of the property of wards; not even if they were conducted in good faith; and it is a principle to be thoroughly approved, that, with respect to property exposed to accident, no relief should be granted a minor as against the purchaser, unless it is established that there was corruption, or evident partiality of the guardian or curator. 9Where a minor has been granted restitution, and interferes with the affairs of an estate, or enters upon one which he had rejected, he can again obtain restitution to enable him to reject it; and this has also been stated in rescripts and opinions. 10Papinianus, however, says in the Second Book of Opinions, that where a slave is substituted for a minor as a necessary heir, and the minor rejects the estate, the said slave will become the necessary heir, and, if the minor obtains restitution, he will nevertheless remain free; but if, before the minor enters upon the estate in the first place and afterwards rejects it, the slave who was substituted for him with a grant of freedom, cannot become the heir, or be free; and this is not entirely true. For if the estate is not solvent, and the heir rejects it, the Divine Pius, as well as our Emperor, stated in a Rescript that, in the case of a minor who is a stranger, there will be ground for the substitution of a necessary heir; and where he says that he will remain free, it signifies apparently that he will not also remain the heir, since the minor obtains restitution after having rejected the estate; so that since the minor does not become the heir, but has a right of equitable action, he will undoubtedly continue to be the heir who once appeared as such. 11Moreover, if the heir did not appeal within the prescribed time, relief will be given him in order that he may appeal; supposing that he desires to do so. 12Moreover, relief is granted him where judgment is taken against him by default. It has, however, been settled that men of every age are entitled to a new trial in case of default, if they can prove that they were absent for some good reason.

8 Hermogenianus, Epitomes of Law, Book I. Even where a minor has lost his case on account of contumacy, he can petition for the relief of complete restitution.

9 Ulpianus, On the Edict, Book XI. If, as the result of a judgment, the pledges of a minor are taken in execution, and sold; and he afterwards obtains restitution in opposition to the decree of the Governor, or of the Imperial Procurator, it must be considered whether the property which was sold should not be recovered; for it is certain that money paid on account of the judgment must be refunded to the minor, but it is more to the interest of the latter to recover the property; and I think, in some instances, it should be allowed, that is if the minor would otherwise sustain great loss. 1Relief is also granted to a woman in the matter of her dowry, if, having been imposed upon, she gave more than her estate would warrant, or gave her entire patrimony. 2It must now be considered whether relief should be granted to minors only where they are imposed upon in contracts, or also where they are guilty of offences; for example, where a minor committed fraud with reference to property deposited, loaned, or subject to some other kind of contract, would he be entitled to relief if nothing came into his hands through the transaction? It is held that no relief should be granted to minors guilty of breaches of the law; and therefore, in this instance, no relief should be allowed, for where a minor commits a theft, or causes damage to property, he will not be entitled to relief. Where, however, after having committed the injury he could have confessed and thereby not be held liable in double damages, but preferred to deny what he had done; he should be granted restitution only that he may be treated as if he had confessed. Therefore, if he was able to make good the loss caused by his theft, rather than be sued for double or quadruple damages, relief will be granted him. 3Where a married woman, after being separated from her husband through her own fault, wishes to obtain relief, or her husband does so, I do not think that restitution should be granted, for this is not an ordinary offence, and if the minor has committed adultery relief cannot be granted him. 4Papinianus states that if a minor of from twenty to twenty-five years of age permits himself to be reduced to slavery—that is if he shares in the price paid for him—he is not entitled to restitution; and this is reasonable, for the case does not admit of restitution, as the party has changed his condition. 5Where a minor is said to have incurred the penalty for nonpayment of taxes, he will be entitled to complete restitution; but it must be understood that no fraud existed on his part, otherwise restitution will not be allowed. 6It is also impossible for restitution to be granted by a Prætor against the freedom of his slave.

10 Paulus, On the Edict, Book XI. Unless where he obtains this favor from the Emperor for some good reason.

11 Ulpianus, On the Edict, Book XI. An action based on fraud, or an equitable action will lie for the amount to which the minor was interested in not having the slave manumitted; hence, whatever he could have had if he had not manumitted the slave must now be delivered to him. Again, with reference to those articles belonging to his master which the manumitted slave purloined; a right of action exists against him, for their production, or for theft, or for the recovery of what was stolen; because he appropriated them after he had been manumitted; otherwise, where the crime was committed while he was in slavery, his master will not be entitled to an action against him after he has obtained his freedom. This is contained in a Rescript of the Divine Severus. 1What if a minor under twenty-five years of age, and over twenty, should sell a slave under this law, in order that he might be manumitted? I refer to one over twenty, as Scævola also mentioned this age in the Fourteenth Book of Questions; and it is the better opinion that the rule set forth in the Constitution of the Divine Marcus addressed to Aufidius Victorinus, does not include this case, that is, the one of a minor over twenty years of age. For this reason it should be considered whether relief can be granted to a minor over twenty years of age, he should be heard if he makes application before the slave obtains his freedom, for if he does so afterwards, he cannot. It also may be asked whether, if the party who makes a purchase under this law is a minor, he is entitled to restitution? If the freedom of the slave has not yet been granted he will be entitled to relief, but if he makes application after the appointed day has arrived, then the will of the vendor, if he has attained his majority, liberates the slave. 2Inquiry was made with respect to the following statement of facts. Certain youths, who were not of age, had accepted as curator a man named Salvianus, and he, having administered his trust for a time, obtained a municipal office through the favor of the Emperor, and procured from the Prætor his release from the curatorship of the aforesaid minors during their absence. The minors then appeared before the Prætor and asked for complete restitution, because the curator had been discharged contrary to the constitution, for it is not customary for parties to relinquish their guardianship unless they are absent beyond sea on public business, or when they are employed in the personal service of the Emperor; as where this was granted in the case of Menander Arrius the Councilor. Salvianus however, had obtained his discharge, and the minors, having been, as it were, imposed upon, petitioned the Prætor for complete restitution. Arrius Severus, being in doubt, referred the question to the Emperor Severus, who, in answer to this consultation, stated in a Rescript to his successor, Benidius Quietus, that there was no reason for the intervention of the Prætor, because it was not stated that a contract had been made with a minor under twenty-five years of age; but it was the duty of the prince to interpose, and cause him who had been improperly excused by the Prætor to resume the administration of the trust. 3It must also be noted that relief cannot be granted to minors indiscriminately, but only where proper cause is shown, and they prove that they have been taken advantage of. 4Again, restitution will not be granted where a person who has been conducting his business properly applies for restitution on account of some loss which resulted, not through his own negligence, but through inevitable accident; but it is not the mere occurrence of loss which confers the right of restitution, but the want of reflection which encourages deceit; and this Pomponius stated in the Twenty-eighth Book. Wherefore, Marcellus says in a note on Julianus, that where a minor purchased a slave whom he needed, and the slave soon after died, he was not entitled to restitution; for he was not taken advantage of when he purchased property which was absolutely necessary for him to have, even though it was mortal. 5Where anyone becomes the heir of a wealthy man, and the estate is suddenly destroyed; for instance, where lands were ruined by an earthquake, or houses were consumed by fire, or slaves escaped, or died; Julianus speaks in such a way in the Forty-sixth Book as to imply that a minor is entitled to complete restitution, but Marcellus says in a note on Julianus that complete restitution will not be allowed, as the party was not deceived on account of the infirmity of youth, when he entered upon a valuable estate, and that what happened to him through accident, might also happen to the most careful head of a household; but in the following instance, restitution can be granted to a minor, that is to say, where he entered upon an estate to which much property belonged that was liable to destruction; for example, land occupied “by buildings, but heavily encumbered with debt, and he did not foresee that the slaves might die. or the buildings be destroyed, or did not sell the property exposed to so many accidents quickly enough. 6The question is also asked, where one minor petitions for restitution against another minor, shall he be heard? Pomponius simply states that restitution should not be granted him; but I think that the Prætor should investigate which one of them was imposed upon, and if they were both deceived, for instance, if one minor lent the other money and he lost it; then (according to Pomponius), he who borrowed the money and squandered or lost it, is in the better condition. 7It is clear that where a minor entered into a contract with the son of a family who was of age, then, as Julianus states in the Fourth Book of the Digest, and Marcellus in the Second Book of the Digest, he will be entitled to complete restitution; so that the rule relating to age receives more consideration than the Decree of the Senate.

12 Gaius, On the Provincial Edict, Book IV. Where a woman intervenes in behalf of a third party in the suit of a minor, no action can be granted him against the woman, but he, just like other persons, will be barred by an exception; because under the Common Law he will be entitled to restitution by an action against the original debtor; and this is the case if the original debtor is solvent, otherwise, the woman cannot invoke the aid of the Decree of the Senate.

13 Ulpianus, On the Edict, Book XI. In the investigation of cause, attention must be paid to the fact whether relief is to be granted to the minor alone, or also to those who have bound themselves in his behalf; as, for instance, sureties. Therefore, if I know that the party is a minor and have no faith in him, and you become surety for him, it is not just that the surety should be given relief, to my injury; hence the action on mandate should rather be refused the surety. In a word, it should be carefully weighed by the Prætor who is more entitled to relief, the creditor or the surety; for the minor who is taken at a disadvantage will be liable to neither. It will be more easy to state that no relief should be granted in the case of him who directed the creditor, for he was, so to speak, the adviser and persuader who was responsible for the contract with the minor. Hence the point may arise whether a minor ought to apply for complete restitution against the creditor, or against the surety? I think the safer way would be to apply for it against both; for proper cause having been shown, and the parties being present—or while absent if they are in default through contumacy—the question as to whether complete restitution should be granted ought to be carefully weighed. 1Sometimes the restitution granted to the minor is in rem; that is to say, it is against the possessor of his property, although no contract was made with him; as, for example, where you purchased property from a minor and sold it to another party, he can sometimes petition for restitution against the possessor to prevent losing his property, or being deprived of it; and in this instance the case is either heard by the Prætor, or the transfer is set aside and an action in rem is granted. Pomponius also states in the Twenty-eighth Book, that Labeo held where a minor under twenty-five years of age sold a tract of land and gave possession, and the purchaser disposed of it; then, if the second purchaser was informed of what has been done, restitution can be granted against him, but if he was ignorant of the facts, and the first purchaser is solvent, this will not be done; but where he is not solvent, it will be more just to grant relief to the minor, even against the purchaser who was uninformed, although he bought the property in good faith.

14 Paulus, On the Edict, Book XI. It is evident that so long as he who purchased property from a minor, or the heir of said purchaser, is solvent, no decree should be granted against the party who purchased the property in good faith; and this also is the opinion of Pomponius.

15 Gaius, On the Provincial Edict, Book IV. But where restitution is granted, the second purchaser can have recourse against his vendor. The same rule applies where the purchase has passed through the hands of several persons.

16 Ulpianus, On the Edict, Book XI. When the case is heard, it also should be taken into consideration whether there is not perhaps some other action available, except the one for complete restitution; for if the party is properly protected by the usual remedy and the ordinary law, extraordinary relief ought not to be granted him; as, for instance, where a contract has been made with a ward without the authority of his guardian, and he does not become more wealthy in consequence. 1Moreover, it is stated by Labeo that where a minor has been fraudulently induced to enter a partnership, or even where he does this with a view to making a donation, no partnership exists, even among minors; and hence the Prætor has no reason to intervene. Ofilius is of the same opinion, for the minor is sufficiently protected by operation of law. 2Pomponius also says in the Twenty-eighth Book, that when an heir was called upon to deliver certain articles to the daughter of his brother, upon the condition that if she were to die without issue, she should restore them to the heir, and the heir having died, she made provision for them to be restored to his heir; whereupon Aristo thought that she was entitled to complete restitution. Pomponius adds, however, that the bond given could be made the basis of a personal action for an uncertain amount of damages even in the case of a person who is of age, for the party is protected not only by the ordinary law, but also by the personal action. 3It is generally established that where a contract is not valid, the Prætor should not interfere if this is certain. 4Pomponius also states with reference to the price in a case of purchase and sale, that the contracting parties are permitted to take advantage of one another in accordance with natural law. 5It should now be considered who those are who can grant complete restitution. The Prefect of the City, together with the other magistrates, as far as permitted by their jurisdiction, can grant complete restitution in other cases, as well as in those against their own decisions.

17 Hermogenianus, Epitomes of Law, Book I. Prætorian prefects can also grant complete restitution against their own decisions, although no one can appeal from them. The reason for this distinction is, that an appeal is equivalent to a complaint that the decision is unjust; and complete restitution includes a petition for relief from the party’s own error, or an allegation of the fraud of his adversary.

18 Ulpianus, On the Edict, Book XI. An inferior magistrate cannot grant restitution in opposition to a decree of his superior. 1If, however, the Emperor has rendered the decision, he very seldom permits restitution, or allows a party to be introduced into his audience-room who alleges that he was imposed upon because of the infirmity of his youth; or says that matters which were favorable to him were not mentioned; or complains that he was betrayed by his advocate. Hence the Divine Severus and the Emperor Antoninus would not hear Glabrio Acilius, who petitioned for restitution against his brother without stating proper cause, after the case had been heard to its termination in their audience-chamber. 2The Divine Severus and Antoninus, when Percennius Severus petitioned for complete restitution, and two decisions had already been rendered, permitted them to be examined in their audience-chamber. 3The same Emperor stated in a Rescript to Licennius Fronto, that it was unusual for anyone, except the Emperor himself, to grant restitution after a decision had been rendered on an appeal by a magistrate appointed by the Emperor to preside in his place. 4But where a judge appointed by the Emperor hears the case, restitution cannot be made by anyone but the Emperor who appointed the judge. 5Complete restitution is granted not only to minors, but also to their successors, even though they themselves may be of age.

19 The Same, On the Edict, Book XIII. Sometimes, however, we grant a successor a longer time than a year to begin proceedings, as is stated in the Edict, if his age should give occasion for it; for, after his twenty-fifth year, he will be entitled to the time granted by law; as, in this instance, he is held to have been deceived since he could have obtained restitution within the time allowed with respect to the deceased, but did not make application for it. It is clear that if the deceased had only a small portion of the available time remaining in which to obtain complete restitution, his heir, if a minor, will be granted time to obtain it after the completion of his twenty-fifth year, not the entire term prescribed, but only so much as the minor, who was his heir, was entitled to.

20 The Same, On the Edict, Book XI. Papinianus states in the Second Book of Opinions, that the time appointed for complete restitution should not be extended for the benefit of a party returning from exile, for the reason that he was absent, for he could have applied to the Prætor through an agent, and did not do so, or could have made application to the Governor in the place where he was. But where the same author says that he is not entitled to relief, on account of the punishment imposed upon him; his opinion is not correct, for what is there is common between a criminal offence and an excuse based upon the infirmity of youth? 1However, where anyone over twenty-five years of age, having joined issue within the time established by law for restitution, should afterwards abandon the case, the joinder of issue will be of no advantage to him in obtaining complete restitution; as has been very frequently set forth in rescripts.

21 The Same, On the Edict, Book X. He is considered to have abandoned a case, not if he merely postpones it, but where he entirely renounces it.

22 The Same, On the Edict, Book XI. Where complete restitution is demanded against the entry on an estate made by a minor, any expense which has been paid out for legacies, or for the value of slaves who have obtained their freedom by means of his entry, will not have to be refunded by the minor. In the same way, on the other hand, when a minor obtains restitution for the purpose of entering upon an estate, any business which has been transacted by his curator, for the disposition of property under the order of the Prætor authorizing the sale of the same according to the form established by law, must be ratified; as Severus and Antoninus stated in a rescript to Calpurnius Flaccus.

23 Paulus, On the Edict, Book XI. Where the son of a family transacts business under the mandate of his father, he cannot claim the benefit of restitution; for if another had given him the mandate he would not be entitled to relief, as, under these circumstances, the party principally interested would be of age, and he would be liable to loss. But if, in the end, the minor suffered loss because he was not able to recover the amount which he had expended from the party whose business he transacted, for the reason that he was not solvent, the Prætor undoubtedly will come to his aid. If, however, the principal was a minor, and the agent the party of full age, the principal would not readily be heard, unless the business had been transacted by his order and he cannot be indemnified by his agent. Therefore, if a minor is taken advantage of while in the capacity of agent, the blame must be imputed to the principal who entrusted his business to a person of this description, and this also is the opinion of Marcellus.

24 Paulus, Sentences, Book I. But where a minor voluntarily meddles with the business of a person who is of age, he is entitled to restitution to prevent loss from being incurred by the party who is of age; and if he refuses to do this, and he then is sued on the ground of business transacted, he will not be entitled to restitution against the action; but he may be compelled to surrender his right to complete restitution, in order to constitute the principal an agent in his own behalf, so that, by this means, he may be able to make good the loss which he suffered through the minor. 1Business transactions with minors should not, however, always be rescinded, but such matters should be based upon what is good and just, to prevent persons of this age from being subjected to great inconvenience, since, otherwise, no one would contract with them; and, to a certain extent, they would be excluded from commercial affairs. Hence the Prætor ought not to interpose his authority unless there is manifest evidence of fraud, or the parties have acted with gross negligence. 2Scævola, our master, was accustomed to say that if anyone induced by the frivolity of youth, abandoned or rejected an estate, or the possession of property, and everything remained intact, he should by all means, be heard; but if, after the estate had been sold and the business settled, he should appear and claim the money which had been obtained by a substitute, his application should be denied; and, in a case of this kind, the court should be much more careful in granting restitution to the heir of the minor. 3Where a slave, or the son of a family, has deceived a minor, the father or the owner should be ordered to make restitution of whatever has come into his hands, and whatever he did not secure possession of, should be paid out of the peculium. If satisfaction cannot be obtained from either of these sources, and the slave was guilty of fraud, he either should be scourged, or surrendered by way of reparation. Where, however, the son of a family committed fraud, judgment should be rendered against him on that ground. 4Restitution should be granted so that every one may recover his entire rights. Therefore, where restitution is granted to a party who has been cheated in the sale of land, the Prætor must order the purchaser to restore the land with the crops, and receive the price paid for the same; unless when he paid it, he was not ignorant that the vendor would squander it, as where money is lent to a person to be expended. Restitution is not so freely granted in the case of a sale, however, for the reason that the purchaser pays the vendor a debt which he is obliged to pay, as nobody is obliged to loan money; for although the contract in its origin may be of such a character that it ought to be annulled, nevertheless, if the purchase-money is required to be paid, the purchaser should not, by any means, be subjected to loss. 5No peculiar action or undertaking arises from this Edict, for all depends upon the examination by the Prætor.

25 Gaius, On the Provincial Edict, Book IV. There is no question about the following, namely, that where a minor pays something which he does not owe, in a matter where demand for restitution is not allowed by the Civil Law, he is entitled to a prætorian action for its recovery; since such a demand is usually granted on proper grounds, even to persons who are over twenty-five years of age. 1Where a young man of this kind, who is entitled to restitution applies for it, it should be granted upon his application, or upon that of his agent, who has been expressly directed to ask for it; but where the party only alleges a general mandate for transacting the business of his principal, he should not be heard.

26 Paulus, On the Edict, Book XI. Where any doubt arises with reference to a special mandate when restitution is applied for; the matter can be arranged by the introduction of a stipulation that the principal will ratify the transaction. 1Where the person who is said to have been imposed upon is absent, his defender should give security that the judgment will be complied with.

27 Gaius, On the Provincial Edict, Book IV. Restitution should be granted under all circumstances to a father in behalf of his son; even though the latter does not consent to it; for the reason that a risk attaches to the father who is liable to an action De Peculio. From which it is evident that other relatives or connections are in a different legal position, and should not be heard, except where they make application with the consent of the minor; or where the life of the minor is such that there is reason for him to be prohibited from having charge of his property. 1Where a minor borrows money and squanders it, the Proconsul should refuse to grant his creditor an action against him. Where, however, the minor lends money to a party who is needy, no other proceedings should be taken, except that the minor should be ordered to assign to his creditor those rights of action which he has against him to whom he loaned the money. If he has purchased, with the money, some land for a higher price than he should have been asked, the matter ought to be settled by ordering the vendor to take back the land and return the price, so that the creditor may recover his money from the minor without any loss to another. From this we learn what should be done where a minor purchases with his own money something for more than it is worth; but in this, as well as in the former instance, the vendor who returns the purchase-money must also return the interest which he obtained, or which he ought to have obtained from the use of said money, and shall receive the profits of the land by which the minor was enriched. Also, on the other hand, where a minor sells property for less than it is worth, the purchaser must be ordered to return to him the land with its profits, and the minor must restore as much of the price as enured to his profit. 2Where a minor under twenty-five years of age gives a release to his debtor without good reason, he is entitled to an action for restitution not only against the debtor, but also against his sureties; as well as an action for any pledges delivered to him; and where he had two principal debtors, and gave one of them a release, he will have a right to an action for restitution against both. 3From this we understand that if a minor should make a renewal of a contract to his disadvantage; for instance, if he should, for the purpose of novation, transfer the liability from a solvent debtor to one who is insolvent, he must be granted restitution against the former debtor. 4Restitution also must be granted against those who cannot be proceeded against on the ground of fraud, unless they are persons who are excepted by some special law.

28 Celsus, Digest, Book II. Where a minor under twenty-five years of age obtains restitution against a party whom he sued on the grounds of guardianship, the guardian cannot, on this account, have the right to a counter action on guardianship restored to him.

29 Modestinus, Opinions, Book II. Even where it can be established that a minor has been imposed upon by his father, who was also his guardian, and a curator is afterwards appointed for him, the latter cannot be prevented from applying for complete restitution in behalf of the minor. 1Where a female ward who had judgment rendered against her in a case based on curatorship, wished to obtain restitution with reference to one part of the decision; and as it appeared that she had succeeded with reference to the other matter in the case, the plaintiff, who was of age, and had at first acquiesced in the decision, claimed that a new trial should be granted. Herennius Modestinus answered to this, that if the point with reference to which the female ward requested complete restitution had no connection with the others, no reason was alleged for which the plaintiff could demand that the entire judgment should be set aside. 2Where a minor obtains complete restitution on account of his youth, and by reason of this rejects his father’s estate, none of the creditors of the latter being present, or having been summoned by the Governor for the purpose of instituting proceedings; the question arises whether restitution should be considered to have been properly granted? Herennius Modestinus gave it as his opinion that since the creditors were not summoned, and the judgment of restitution had been rendered without this, the rights of the creditors were not in the least impaired.

30 Papinianus, Questions, Book III. Where a son, who has been emancipated, fails to appear to demand possession of an estate, but petitions for restitution, and having reached the age of twenty-five years brings suit for a legacy under his father’s will; he is held to have abandoned the case, for if the time for obtaining possession of the property has not elapsed, still, having chosen to accept the will of the deceased, he must be considered to have rejected the benefit of the intervention of the Prætor.

31 The Same, Opinions, Book IX. Where a woman, after becoming an heir, obtained complete restitution for the purpose of enabling her to reject the estate; I gave it as my opinion that the slaves belonging to the estate who had been manumitted by her in proper form, under a trust, were entitled to retain their freedom, and that they would not be compelled to pay twenty aurei in order to retain it, as they appeared to have obtained it in the most approved manner. For if any of the creditors had recovered their money from her before she had obtained restitution, the claims of others against those who had been paid, with a view to having the money divided among them, would not be allowed.

32 Paulus, Questions, Book I. A minor under twenty-five years of age having applied to the Governor convinced him, from his appearance, that he was of age, which was not the case; but his curators, as they knew him to be a minor, continued to conduct his affairs. In the meantime, after his age had been proved, and before he had completed his twenty-fifth year, certain sums of money that were due to the minor were paid to him, which he squandered. I ask who is responsible for the loss; for if the curators had been in error, and thinking that he had attained his majority, had relinquished the administration of his property, and rendered their accounts, would they have to assume the risk for the time which had passed after proof of his age had been established? I answered that those who have paid their debts are released by operation of law, and cannot be sued a second time. It is evident that the curators who, knowing the party to be a minor, persevered in the discharge of their duties, ought not to have allowed him to receive the money which was due; and on this account suit should be brought against them. If, however, they themselves accepted the decision of the Governor, and ceased to administer their trust, or even rendered an account; they are in the same legal position as other debtors, and therefore should not be sued.

33 Aburnius Valens, Trusts, Book VI. Where a minor under twenty-five years of age is requested to manumit his slave, who is worth more than the legacy bequeathed in the will to said minor, and he accepts the legacy; he cannot be forced to grant freedom to the slave if he is ready to return the legacy. Julianus was of the opinion that, as minors have the right to decline a legacy if they are unwilling to manumit a slave; so a minor, in this instance, if he returns the legacy, is released from the necessity of manumission.

34 Paulus, Sentences, Book I. Where a minor under twenty-five years of age lends money to the son of a family who is also a minor, the position of the one who spends the money is the better; unless he who receives it was found to be the more wealthy for this reason, at the time when issue was joined. 1Where minors have agreed with one another to submit their case to a certain judge, and have, with the consent of their guardian, stipulated to abide by his decision, they can legally ask for complete restitution against an obligation of this kind.

35 Hermogenianus, Epitomes of Law, Book I. Where, in a purchase of property at auction, another party makes a better bid than a minor, if the latter asks for complete restitution, he must be heard, if it is proved that he was interested in the purchase of the property, for instance, because it had belonged to one of his ancestors; but this is only upon condition that he offers to the vendor the amount of the excess bid by the other party.

36 Paulus, Sentences, Book V. A minor under twenty-five years of age who has failed to make some allegation, can do so by the aid of complete restitution.

37 Tryphoninus, Disputations, Book III. The aid granted by complete restitution was not provided for the imposition of penalties; and hence where a minor has once neglected to bring an action for injury, he cannot recover the right to do so. 1Where the sixty days have elapsed, during which a man can accuse his wife of adultery by the right of a husband; complete restitution will be refused him, and if he now wishes to recover the right which he failed to exercise, how would this differ from an application to be released from the commission of an offence; that is to say, from the institution of a suit for the purpose of annoyance. Since it is a well established principle of law that the Prætor should not come to the aid of parties who have committed crimes, or have instituted vexatious proceedings; complete restitution will not apply under such circumstances. In a case of crime, a minor under twenty-five years of age is not entitled to complete restitution, at all events, where more serious offences are concerned; unless, when compassion for his youth may sometimes cause the judge to impose a milder penalty. But with reference to the Lex Julia which relates to the punishment of adultery, where a minor confesses that he has been guilty of adultery, he cannot escape the penalty for this offence; nor, as I have stated, can he do so where he commits any of these offences which the law punishes as it does adultery; for instance, where he knowingly marries a woman who has been convicted of adultery; or does not dismiss his own wife who was caught in adultery; or where he profits by the adultery of his wife; or accepts a reward for the concealment of unlawful intercourse; or permits his house to be used for the commission of fornication or adultery; for the excuse of youth cannot be pleaded against legal provisions, where a man although he invokes the law himself violates it.

38 Paulus, Decrees, Book I. Æmilius Larianus purchased from Obinius the Rutilian tract of land, subject to the condition of payment on a certain day, and paid down a part of the purchase-money; it being understood that if, within two months from that date, he should not have paid half of the remainder of the price, the sale should be considered void; and also, if he did not pay the remainder within two months more, the sale should also be held to be void. Larianus, having died before the first two months had elapsed, was succeeded as heir by Rutiliana, a minor, whose guardians neglected to make payment within the specified time. The vendor, having served several notices upon the guardians, after a year had elapsed sold the property to Claudius Telemachus; and then the ward applied for complete restitution, and having lost the case before the Prætor, as well as the Prefect of the City, she appealed. I was of the opinion that the decision was correct, because her father, and not herself, made the contract; the Emperor, however, decided that, as the day when the condition was to be fulfilled came during the time when the girl was a ward, this was good cause why the condition of the sale should not be observed. I stated that she was rather to be granted restitution for the reason that the vendor, by notifying her guardians after the time when it was agreed that the sale should be annulled, and by demanding the purchase-money, should be held to have abandoned the condition which was for her benefit, and that I was not influenced by the fact that the time had afterwards elapsed; any more than I would have been had a creditor sold a pledge after the death of a debtor, when the day of payment had passed. Still, because the law of conditional avoidance was displeasing to the Emperor, he decreed that complete restitution should be granted. He was also influenced by the fact that former guardians, who had not applied for restitution, had been declared to be liable to suspicion. 1When it is stated that relief is not ordinarily granted to the son of a family after he has been emancipated, if he is still a minor, with reference to matters which he had neglected while under paternal control; this is only held to be the case where he would otherwise acquire property for the benefit of his father.

39 Scævola, Digest, Book II. Where minors appeared before the Governor, within the proper time, to obtain relief, and petitioned for complete restitution, and proved their age; and judgment having been granted on account of their minority; their opponents, for the purpose of preventing further proceedings before the Governor, appealed to the Emperor, and the Governor deferred the other matters which were to be decided in the action until the result of the appeal was ascertained; the question arose whether, when the examination of the appeal was concluded, and the appeal was dismissed, and the parties found to have become of age, they can bring the case to a termination, since it was not their fault that it was not finished? I answered that, considering the question as stated, the case could be tried just as if the parties were still under age. 1Lucius Titius purchased a tract of land sold by the curators of a minor, and held it in his possession for nearly six years, and greatly improved the property. I ask whether the minor has the right of complete restitution against Titius, the purchaser, if his curators are solvent? It is my opinion, from all that has been stated, that the minor would hardly be entitled to restitution, unless he preferred to reimburse the bona fide purchaser for all the expense which the latter could prove he had incurred, and especially as he could readily obtain relief, since his guardians were solvent.

40 Ulpianus, Opinions, Book V. A minor under twenty-five years of age obtained a judgment ordering that a legacy, based upon a trust, be paid to him; he gave a release for it, and the debtor furnished him security, just as if he would have done if the money had been borrowed. Under these circumstances, the minor is entitled to complete restitution; for the reason that he had obtained a right to bring an action for money on account of a judgment, and by a new contract he had changed that right for one for the institution of proceedings of another kind. 1A minor under twenty-five years of age, without proper deliberation, surrendered land which belonged to his father in settlement of debts shown by the accounts to belong to the guardianship of other minors, whose affairs his father had transacted. Complete restitution was ordered that matters might be equitably restored to their former condition, and the amount of interest which appeared to be due on account of the guardianship was calculated and set off against the amount of the profits received.

41 Julianus, Digest, Book XLV. When a judge orders land to be restored where a minor has been overreached in a sale, and directs him to return the price of the same to the purchaser, and he is unwilling to take advantage of complete restitution, having changed his mind; the minor is entitled to an exception against the party demanding the purchase-money, as in the case of res judicata; because every one is permitted to reject what was introduced for his own benefit. Nor can the purchaser complain if he is restored to the same condition in which he was placed by his own act, and which he could not have changed if the minor had not sought the aid of the Prætor.

42 Ulpianus, On the Office of Proconsul, Book II. The Governor of a province can grant complete restitution to a minor, even against his own decision, or that of his predecessor; because minors can, on account of their age, obtain the same benefit which an appeal confers upon persons who have reached their majority.

43 Marcellus, On the Office of Governor, Book I. The age of a party who states that he is over twenty-five must be proved by investigation, because by this means his complete restitution, as well as other matters, may be prevented.

44 Ulpianus, Opinions, Book V. All the acts of minors under twenty-five years of age are not invalid, but only those of such as, after investigation, are ascertained to have been overreached; as where they were imposed upon by others, or were deceived by their own credulity, or lost something which they formerly had, or failed to obtain some profit which they could have acquired, or subjected themselves to some liability which they ought not to have assumed.

45 Callistratus, Monitory Edict, Book I. Labeo states than an unborn child is entitled to an action for restitution, where he has lost something by usucaption. 1The Emperor Titus Antoninus stated in a Rescript that where a minor alleged that his adversary had been discharged through the fraud of his guardian, and wished to begin a new action against him, he could first bring suit against his guardian.

46 Paulus, Opinions, Book II. Where anyone voluntarily undertakes to defend a minor in a trial, and the latter loses his case, suit can be brought against him to enforce the judgment; and the youth of the party whom he defended will be of no benefit to him in obtaining restitution, since he cannot object to the judgment. From this it appears that the minor, on whose account judgment was rendered against him, cannot apply for the aid of restitution against the decision.

47 Scævola, Opinions, Book I. A guardian, being pressed by creditors, made a bona fide sale of the property of his ward, and his mother protested against the sale to the purchasers. I ask, since the property was sold on the demand of the creditors, and nothing could reasonably be alleged concerning the corruption of the guardian, whether the ward was entitled to complete restitution? I answered that inquiry must be made in order to determine this; and therefore, if there was just cause for restitution, it ought not to be refused because the guardian was not guilty of any offence. 1A guardian of minors sold certain lands which he held in common with his wards, and of which he had charge. I ask if the minors are entitled to complete restitution by the decree of the Prætor, or whether the sale should be rescinded only so far as they had an interest in the common property? I answered that it should be rescinded to that extent; unless where the purchaser desired to have the entire contract rescinded, because he was unwilling to purchase only a share in the land. I also ask whether the purchaser should receive from the wards, Seius and Sempronius, the purchase-money, with interest; or whether he should receive it from the heir of the curator? I answered that the heir of the curator would be liable, but that actions would be granted against Seius and Sempronius for the shares which they owned in the land; at all events, if the money received had come into their hands to that amount.

48 Paulus, Sentences, Book I. Where a minor obtains complete restitution in a matter for which he became surety, or gave a mandate, he does not release the principal debtor. 1A minor sold a female slave; if the purchaser manumitted her, the minor could not obtain complete restitution on this account, but he would be entitled to an action against the purchaser to the extent of his interest. 2Where the condition of a woman under twenty-five years of age becomes worse on account of an agreement relating to her dowry; and she made such a contract as no woman who had attained her majority would ever make, and for that reason she wished to rescind it, she should be heard.

49 Ulpianus, On the Edict, Book XXXV. Where property belonging to a minor or a ward which the law does not forbid to be sold, is alienated, the sale is valid. If, however, great loss results to the ward or the minor, even if there is no collusion, the sale may be rescinded by complete restitution.

50 Pomponius, Letters and Various Passages, Book IX. “Julius Diophantus, to his friend Pomponius, Greeting. A minor under twenty-five years of age, with the intention of renewing a contract, intervened in behalf of the party who was liable in an action which would be barred by lapse of time, while ten days of said time still remained, and he afterwards obtained complete restitution. Should the right of restitution be granted to the creditor against the former debtor, for ten days, or for a longer period? I held that so much time should be granted from the day of complete restitution as remained, and I wish that you would write to me what you think about it.” I answered, I undoubtedly think that your opinion with respect to the right of action dependent upon the time in which the minor intervened, is the more correct one; and therefore that the pledge which the former gave will still remain encumbered.