Commentaries on the Last Two Titles of the Digest

... the demented person is not led entirely, but only in part, by error of mind. Sometimes, however, these words are taken indiscriminately, and one who is demented is called insane, and conversely, Law: When demented. 28, Code, On episcopal audience; Law 2, Digest, On inofficious testaments. Vigelius in paragraph 1, Institutes, To whom it is not permitted to make a testament, no. 1. Add Gœddaeus treatise on the contract of stipulation, chapter 7, common 9.

2. In contracting business, the lot and condition of the insane and wards is different. The insane person cannot contract any business, the said law 5, because he does not understand what he is doing, paragraph 8, Institutes, On the usefulness of stipulations; Law 1, paragraph 12, Digest, On Obligations and Actions. A ward can do all things with the tutor as author, in the said law. A ward, namely, who can speak, in the same law, that is, who has exceeded the seventh year, Law 18, Code, On the law of deliberation; for an infant ward does everything through the tutor, Law 9, Digest, On acquiring inheritance; the said law 18, Code, On the law of deliberation; Law 1, Code, To the Senatus Consultum Tertullianum. Cujacius 1, observations 34. Dissenting is Accursius, who excepts the stipulation, "That the property of the ward shall be kept safe," which an infant can contract, Law 6, Digest, That the property of the ward be kept safe.

3. An infant ward acquires an inheritance through the tutor; not with the tutor as author. The tutor enters the inheritance in the name of the infant: not the infant with the tutor as author. Here it is asked: Did the first Theodosius establish this in the said law 18, that an inheritance is acquired for an infant through the tutor, and not with the tutor as author? No, for the same obtained even by the law of the Digest, the said law 9. Law: Slave unwilling. 65, paragraph 3, verse "but also to the infant," Digest, To the Senatus Consultum Trebellianum stands gravely against this. The infant "acts as heir with the tutor as author." P. Fabrus responds that the infant can act as heir with the tutor as author; but not also enter the inheritance, with the same as author. Giphanius, in the said law 18, says that the said law 65 was interpolated by Tribonian. I prefer this, that Marcianus, in the said law 65, wished to speak more conveniently a little later through a certain epanorthosis correction/emendation.