ACTIO EXERCITORIA

In his Institutes Gaius refers to other actions which were available against a slave-owner or paterfamilias in relation to acts done by his slave or depen­dent child. It is a passage of particular interest, which appears to be written from a viewpoint less theoretical and more orientated towards practice than we would normally expect in juristic writing.

It is true that Gaius is not suggesting that the actio de peculio is so prob­lematic that it should be avoided unless all else fails, since in the very next paragraph he points out that it is sometimes preferable to the actio tributoria.¹² The reason for that is that the actio de peculio is limited only by the total

10 See, e.g., D 14.1.1.19 (Ulpian, Edict 28), and D Johnston, “Law and commercial life of Rome” (1997) 43 Proceedings of the Cambridge Philological Society 53-65.

11 Gai Inst 4.74 “sed nemo tam stultus erit, ut qui aliqua illarum actionum sine dubio solidum consequi possit, vel in difficultaten se deducat probandi habere peculium eum cum quo contrax­erit exque eo peculio posse sibi satis fieri vel id quod persequitur in rem patris dominive versum esse.”

12 Gai Inst 4.47a.

value of the peculium, while the actio tributoria is limited by the amount of the peculium that is being used in relation to the particular business (merx peculiaris). It is fair to say that Gaius' main practical concern is not about the ease with which a successful claim may be made but about its quantum.

This does, however, raise the question how readily a creditor could succeed in one of the other possible actions.¹³ In relation to that question, a full discussion cannot be attempted here but only some short observations on the actio exercitoria.

D 14.1.1.19, Ulpian 28 ad edictum: Si is qui navem exercuerit in aliena potestate erit eiusque voluntate navem exercuerit iudicium datur. (20) Licet autem detur actio in eum cuius in potestate est qui navem exercet tamen ita demum datur si voluntate eius exerceat.... (22) Si tamen servus peculiaris volente filio familias in cuius peculio erat vel servo vicario eius navem exercuit pater dominusve qui voluntatem non accommodavit dumtaxat de peculio tenebitur sed filius ipse in solidum. Plane si voluntate domini vel patris exerceant in solidum tenebuntur et praeterea et filius, si et ipse voluntatem accommodavit, in solidum erit obligatus.

If a ship operator (exercitor) is in another's power (potestas) and operates the ship by his will, an action is given against the paterfamilias in relation to dealing with the ship's captain, (20) But an action is only given against the operator's paterfamilias, if the operator by the will of the paterfamilias.. (22) If a ship is operated by a slave held in a peculium by the will of the filiusfamilias or slave whose peculium it is, a paterfamilias or owner who did not lend his will to the operation is liable only up to the amount in the peculium, although the fi liusfamilias is liable without limit. Clearly if they operate by the will of the owner or paterfamilias, then they are liable without limit. The fi liusfamilias is also liable without limit if he lent his will to the operation.

The focus in this passage is firmly on voluntas, will. As paragraph (22) makes clear, what it comes down to in the end is this:

1. A paterfamilias or owner is liable for what the ship operator does in full only if the operation of the ship take place by his will.

13 On these in their social context, see in particular J-J Aubert, Business Managers in Ancient Rome: a Social and Economic Study of Institores 200 bc-ad 250 (1994); T Chiusi, Contributo allo studio dell’editto “de tributoria actione’ (1993).

2. If he knows nothing about the operation, then he is liable in accordance with the rules on peculium only up to the amount in the ship operator's peculium.

3. If he knows of the operation but it does not take place by his will, Ulpian makes clear elsewhere^[321] that this is not regarded as equivalent to voluntas, so his liability is still limited by the amount in the peculium.

4. The paragraph introduces a further complexity, the case of a ship operator who is himself held within the peculium of a child or other slave. The principles here are precisely the same: if it is by the will of the son or principal slave (servus ordinarius as opposed to vicarius) that the opera­tion take place, then he is liable in full - the only difference being that “in full” here necessarily means up to the value of his own peculium. On the other hand if it is not by their will, then the liability extends only up to the amount in the subpeculium, the operator's own peculium.

About this general structure two broad points may be made, one about commerce and the other about law. First (on commerce) the effect of these rules appears to be that the paterfamilias could enjoy limited liability for what his slave or child did only as long as he remained at arm's length from the business, appointed them to do nothing, authorised nothing and knew nothing. That is not as difficult to achieve as it may sound when a slave's peculium could contain other slaves who might have their own peculia.

Second (on law), what is most striking in Ulpian's text is that the borderline in relation to the availability of the remedies is drawn between will on the one hand and ignorance on the other. The texts indicate that if the paterfamilias was entirely ignorant of the ship's operation he was exposed only to the actio de peculio. On the other hand if he knew about the operation, he was exposed to the actio tributoria.^[322] But for unlimited liability to attach to him he needed not just to know but to intend that the ship be operated. It is remarkable that there appears to be no discussion in the Digest about voluntas and how it is to be demonstrated, even though it was the key to being able to recover in full from the ultimate owner of the ship. As Ulpian explains,^[323] there is not always time to check up on the standing of a ship's captain before the vessel sails, so it is important that recourse against the ship's operator (exercitor) be possible.

Given that Ulpian is keen to stress the utilitas of the present edict, the voluntas requirement appears to be excessively conservative. It therefore seems most likely that the reason lying behind it is one of traditional adher­ence to principle. We bear in mind the context, that all of these remedies represent a break with the basic principle that a slave could make his owner's position worse. The question is then how radical a break with principle is to be tolerated. Taking voluntas as the touchstone means that the owner had to have a positive intention that something should be done. Seen from that perspective, the present action is in essentials much the same as the actio quod iussu, there being instead of a specific instruction something akin to a generalised iussum. It is not too radical to make a person liable for something that he himself wills should be done. In principle it is clearly much more radical to make him liable simply because he is aware that something is being done. But, as I have attempted to suggest, the distinction although intellec­tually impeccable is perhaps not a very practical one in the present context. Practical or not, it offered the jurists an attractive tripartite scheme (we recall from Henry Goudy the Roman jurists' fondness for trichotomy^[324]): first, ignorance: peculium; second, knowledge: actio tributoria; and third, inten­tion: actio exercitoria. It is not wholly fanciful to suppose that from time to time the elegance of doctrinal analysis worked as a kind of dead hand with respect to the pragmatic evolution of the law.

Having said that, however, I think one might draw precisely the opposite conclusion in relation to the actio de peculio. Although it posed certain challenges for a creditor who sought satisfaction, it would be wrong to draw the conclusion that the law was consciously designed so as to make it diffi­cult to sue. That could not invariably be in the interests of any particular social group. Not even the jurists. The point is rather that liability dumtaxat de peculio was itself a break with the principle that a slave could not make his owner's position worse. As an exception to a well-established rule, it was bound to be interpreted in a manner which was restricted, even if a degree of inconvenience was the inevitable result. Some might conclude that this is but another illustration of the distant relationship of the jurists with real life and practice. But that conclusion would go too far. Creditors did have other remedies, and as Gaius mentions the action based on the peculium was in a sense a last resort where none of the others was possible. What was important was to depart from the principle that slaves could not bind their owners only so far as necessary to enable trade to work efficiently. Against the background of well-established principle, to expose a slave-owner or pater­familias to unlimited liability where he knew nothing of the transactions in question would have been extreme. The peculium was a remarkable means of balancing the interests of those involved in trade, by imposing some liability but not too much.

D.