CASE 222: Paying a Debt
D. 4.4.7.1-2 (Ulpianus libro undecimo ad edictum)
(1) Proinde si emit aliquid, si vendidit, si societatem coiit, si mutuam pecuniam accepit, et captus est, ei succurretur.
(2) Sed et si ei pecunia a debitore paterno soluta sit vel proprio et hanc perdidit, dicendum est ei subveniri, quasi gestum sit cum eo. et ideo si minor conveniat debitorem, adhibere debet curatores, ut ei solvatur pecunia: ceterum non ei compelletur solvere. sed hodie solet pecunia in aedem deponi, ut Pomponius libro vicensimo octavo scribit, ne vel debitor ultra usuris oneretur vel creditor minor perdat pecuniam, aut curatoribus solvi, si sunt. permittitur etiam ex constitutione principum debitori compellere adulescentem ad petendos sibi curatores. quid tamen: si praetor decernat solvendam pecuniam minori sine curatoribus et solverit, an possit esse securus? dubitari potest: puto autem, si allegans minorem esse compulsus sit ad solutionem, nihil ei imputandum: nisi forte adversus ini- uriam appellandum quis ei putet. sed credo praetorem hunc minorem in integrum restitui volentem auditurum non esse.(Ulpian in the eleventh book on the Edict)
size=1 color=black face="Book Antiqua">(1) Accordingly, if he (a minor) buys or sells something, enters a partnership, or borrows money, and he is disadvantaged, he will get relief.
(2) But also if money was paid to him by his father’s debtor or his own, and he (then) lost this, it must be held that he gets relief, on the theory that business was conducted with him. And so if a minor sues the debtor, he should summon his curatores so that the money is paid to him; otherwise, there is no compulsion to pay him.
But today the money is usually deposited in a temple, as Pomponius writes in the twenty-eighth book (on the Edict), both to free the debtor of further interest payments and to prevent the minor creditor losing money; or it is paid to the curatores, if there are any. Also, by an imperial constitution, a debtor can force a youth to obtain curatores for himself.
So then, what if the praetor decides that money should be paid to a minor who has no curatores; if he (the creditor) pays, would he be safe? This can be doubted. But I think that if he was forced to pay (despite) alleging that this was a minor, he should bear no further liability, unless perhaps someone thinks that he must appeal against the wrong (of this judgment). But in my opinion the praetor would not hear such a minor if he sought restitutio in integrum.
1. Paying Can Be Difficult. Here the debtor wishes to repay money to a minor but wants to be sure that the payment will release him from the debt; among the dangers is that the minor might “lose” the money (what is meant?). How should the debtor proceed? What role does Ulpian envision for the curatores? Payment into a temple escrow account is one option; is this preferable to paying the ward directly?
2. Suing the Curator. There is no special lawsuit, but the curator can be sued if he takes an active role in administering the minors affairs (see, e.g., Paul, D. 26.7.26).