CASE 122: Turned to the Father's Benefit
D. 15.3.1 pr. (Ulpianus libro vicensimo nono ad edictum)
Si hi qui in potestate aliena sunt nihil in peculio habent, vel habeant, non in solidum tamen, tenentur qui eos habent in potestate, si in rem eorum quod acceptum est conversum sit, quasi cum ipsis potius contractum videatur.
D.
15.3.15 (Ulpianus libro secundo Disputationum)Si filius familias constituerit quod pater debuit, videndum est, an de in rem verso actio dari debeat. atquin non liberavit patrem: nam qui constituit, se quidem obligat, patrem vero non liberat. plane si solvat post constitutum, licet pro se videatur solvisse, hoc est ob id quod constituit, in rem tamen vertisse patris merito dicetur.
(Ulpian in the twenty-ninth book on the Edict)
If those in another person’s power have nothing in their peculium or have not enough for the entire amount (of their debt), the persons who have them in their power are liable if what was received was turned to their benefit (in rem conversum), on the theory that the contract was really with them.
(Ulpian in the second book of Disputations)
When a son has promised to pay a debt his father owed, we must examine whether the action on benefit received (actio de in rem verso) should be granted. But he did not (thereby) free his father (from the debt); for (merely) by promising to pay he obligates himself but does not free his father. Clearly, if he should (actually) pay after having promised, (then) even though he is held to have paid on his own behalf, that is, because he promised, nonetheless he is correctly held to have benefited his father.
1. The Father’s Benefit.
What is the theory behind the rule that if the pater benefits from the transaction of a child-in-power or a slave, he must pay for the benefit? The basic rules are set out by Ulpian, D. 15.3.5.2, 7.1: If a child or slave contracts an obligation with the consent of the pater, then the action on an order lies (Case 121); but if without consent, then the action on benefit will lie if either the pater ratifies the transaction (contrast Discussion 2 to Case 121; is this a better way to handle the problem?) or the expenditure was “necessary or useful” (necessaria vel utilis) to the pater, that is, insofar as his estate had materially profited. In the latter case, it makes no difference that the pater did not know of the transaction and did not want the benefit. For example, if the son or slave uses borrowed money to maintain or improve the paters house, this is recoverable from the pater even if he did not want the improvement; but luxurious decorations are not recoverable (Ulpian, D. 15.3.3.2, 4). Why is this justified?2. Paying Off the Old Man’s Debts. How does the second passage illustrate the general rule? Compare also Ulpian, D. 15.3.10.2, where it is observed that there is no recovery if the son intended to make a gift to the pater. Does that make sense?
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