Tryphoninus, Disputations, Book IX. Good faith, which is required in contracts, demands the greatest degree of equity; but should we estimate that equity with reference to the Law of Nations, or in accordance with civil and prætorian precepts? For instance, a party accused of a capital crime deposited a hundred aurei with you, he was banished, and his property confiscated. Should the deposit of this money be returned to him, or be placed in the Public Treasury? If we only have in view the Law of Nature and of Nations, it should be returned to him who gave it; but if the Civil Law and the provisions of legal enactments are considered, it must be turned over to the Public Treasury, for he who has deserved ill of the people should be oppressed by poverty, in order to serve as an example to others for the prevention of crime. 1Another point comes up here for examination, that is, whether we should hold that good faith ought to be limited to the parties who have contracted with one another, without paying any attention to other persons who are interested in the matter under consideration. For example, a thief deposited with Seius, who was not aware of his criminality, some plunder which he had taken from me, should Seius restore the property to the thief, or to me? If we only consider the giver and the receiver, good faith requires that he who gave the property in charge of another should receive it; but if we look at the equity of the matter which is due to all the persons concerned in this transaction, that should be returned to me of which I have been deprived by a most wicked act. I believe that to be justice which gives to every one his own, in such a way that any person who has a better claim may not be deprived of it. Therefore, if I do not appear to claim the property, it must, nevertheless, be returned to him who deposited it, even though he did so after having wrongfully obtained it. Marcellus states the same thing with reference to a depredator and a thief. Where, however, the thief, not being aware who was the father or master of the son or the slave from whom he took the property, deposits it with either of them, they being ignorant of the facts, this does not constitute a deposit according to the Law of Nations; because the character of a deposit is such that a man’s own property must be given as that of another, for safe keeping, to some person who is not its owner. If a thief deposits with me my own property, which he took without my knowledge, I being ignorant of his crime, it is rightly held that no deposit is made; for it is not in accordance with good faith for an owner to be compelled to surrender his own property to a thief. But where, in a case of this kind, property placed on deposit is given up by its owner who was not aware of the facts, a personal action for the recovery of something that was not due will lie.

Ad Dig. 19,2,8ROHGE, Bd. 15 (1875), Nr. 19, S. 48: Interesse, der Betrag, der dem Dritten hat bezahlt werden müssen.Tryphoninus, Disputations, Book IX. Let us see whether neither sixty nor fifty aurei should be paid, but an amount equal to the interest the tenant has in the enjoyment of the property leased, so that the second lessor can only recover the sum that he owes to the party who rented the property from him; and since the profit of the lease is to be computed according to the amount of the higher rent, the result is that the sum recovered should be greater. The first lessor will still have a right to claim the fifty aurei which he would have collected from the first tenant, if the owner had not forbidden the last tenant to occupy the house. This is our practice.

Tryphoninus, Disputations, Book IX. The son of a guardian is forbidden to marry his ward, while his father is compelled to render an account of the guardianship; whether he does so during the lifetime of the guardian, or after his death. I do not think that it makes any difference whether the son becomes his heir; or whether he rejects the estate of his father; or whether he does not become his heir because he was disinherited; or, having been emancipated, he was passed over in the will; for it might be compelled to surrender property belonging to the guardianship which has been fraudulently given to him by his father. 1There is one point with reference to which doubt may arise; for instance, where a grandfather is administering the guardianship of his granddaughter born to an emancipated son, can he give her in marriage to a grandson by another son, whether he is emancipated or still remains under his control, as his affection for both of them will remove any suspicion of fraud? Although the Decree of the Senate, in its strict interpretation, applies to all kinds of guardians, still, in consideration of the great affection entertained by a grandfather, a marriage of this kind should be permitted. 2Where a son under paternal control is the guardian or curator of a girl, I think that there is still more reason that she should not be allowed to marry his father. Should she be allowed to marry his brother, who is under the control of the same father? 3Let us see if the son of Titius should marry a girl who was your ward, and you then adopt Titius, or his son, whether the marriage will be annulled, as is settled in the case of an adopted son-in-law, or whether the adoption will constitute an impediment to the marriage. The latter is the better opinion, even if the curator, while he is administering his office, should adopt the husband of the girl whose curator he is; for, as soon as the guardianship is terminated, and the girl is married to someone else, I think that, in order to prevent the adoption of her husband, it would be necessary to show that it was contrived to prevent the rendering an account of the guardianship, which the Address of the Divine Marcus included as a cause for the prevention of marriages of this description. 4Where a curator is appointed for the property of an unborn child, he will be subject to the prohibition of this Decree of the Senate, for he also must render an account. The time consumed in the administration of a curatorship should not be considered by us, because, whether it be long or short, the time required to carry out such a trust by the person charged with its performance is of no consequence. 5While Titius was administering the guardianship of a female ward, or as her curator was transacting her business, she died, and left a daughter as her heir, before an account had been rendered. The question arises whether Titius could give her in marriage to his son. I said that he could do so, because the account due to the estate was merely a simple debt; otherwise, every debtor who was liable to him for any reason whatsoever would be forbidden to marry her himself, or give her in marriage to his son. 6Where a guardian causes his ward to reject the estate of her father, he should give her a good reason for doing so, for he might happen to have judgment rendered against him on this ground if he acted without proper deliberation; even if he did not avail himself of the aid of the Prætor, after taking proper advice, because the father of the girl died insolvent. Nevertheless, as it is necessary for this to be proved in court, the marriage will be hindered; for he who has administered a guardianship advantageously and with fidelity, will still be prohibited from contracting such a marriage.

The Same, Disputations, Book IX. Where a father promises a dowry to his daughter by a donation mortis causa, the promise will be valid, for he will be bound just as if he had made it at the time of his own death. If, however, he should recover, why should he not be released from the obligation by means of a personal action, just as would be the case where someone else entered into a stipulation, or promised a dowry in behalf of another? The case is similar where a personal action will lie to recover money which has been given, or to compel a party to release an obligation incurred mortis causa. The same cannot be said with reference to a woman, if she promised a dowry mortis causa, because a dowry is void, unless it can be used to defray the expenses of marriage.

Tryphoninus, Disputations, Book IX. A guardian appointed for the son of a man to whom he was liable as surety should collect payment from himself, and even though released by lapse of time, he, as well as his heir, will still be liable in an action on guardianship, because proceedings are instituted against him on account of the guardianship and not as surety. And if the guardian makes payment, not as surety, but in his fiduciary capacity, even though he may have been released by lapse of time, I held that he would be entitled to an action on mandate against the principal promisor; for the right to collect the debt attaches to both of these conditions; as, by payment, he has released the principal promisor from the obligation with reference to which he became surety for him, and not the title of the action, but the consideration of the debt should be taken into account. For although the guardian, who is also liable to his ward as surety, made payment with the authority of his ward, because the principal promisor was released, he who is both guardian and surety will also be freed from liability; which cannot be done by his own authority, even if he made payment, not with the intention of releasing himself, but especially for the purpose of releasing Titius, and he will be entitled to an action on mandate against him.

Tryphoninus, Disputations, Book IX. If property which has been stolen, or obtained by violence, comes into the hands of the owner, and he is ignorant of the fact, it will not be considered to have been restored to his control. Therefore, if after possession of this kind the property should be sold to a bona fide purchaser, usucaption cannot take place.