ACTIO DE PECULIO

Unfortunately, the chapters dealing with the actio de peculio in Gaius’ Institutes (4.72-72a) are partly lost or badly damaged, both in the Verona palimpsest and in the Oxyrhynchite papyrus (P.Oxy.

XVII 2103) that miracu­lously supplements it in this part of book 4. On the other hand, thanks to the compilers’ diligence, a large collection of juristic opinions from the classical period of Roman law is preserved in title 15.1 of Justinian’s Digest. Ulpian reports that the actio de peculio had been created after - meaning, possibly but not necessarily much later than - the above-mentioned remedies calling for the principal’s total liability (in solidum).^[561] The actio de peculio is available if the peculium has seen an increase due to the transaction under litigation,^[562] thus benefitting the principal, whatever his legal relationship (ownership, possession, usufruct, and so on) with the slave.^[563] The question is how would such an increase be traced? What evidence would a creditor resort to in order to establish and quantify it? Pomponius regards the peculium as a sub­account, created by the slave’s master and likely to grow or shrink, to be eventually cancelled at the master’s will. In legal terms, a peculium requires the master’s initial permission.^[564] Thus Q. Aelius Tubero, a late Republican jurist quoted by Ulpian through P. luventius Celsus of Hadrianic time, defines the peculium as ‘what a slave keeps separate from the master’s accounts with the latter’s permission, after deduction of what the slave owes his master’.^[565] The master’s permission rests less on his will (volente domino) than on his acceptance (patientia) with regard to his awareness (scientia) of the very existence of the peculium. To have a peculium does not imply the right to dispose of it, by transfer of some or all of its parts, because it would worsen the economic position of the principal. Consequently, more is required to do so, such as the concessio liberae administrationis,^[566] a special permission whereby the slave is enabled to do on a regular basis what should have been allowed only on a case-by-case basis, according to Paul who implicitly refers to some kind of iussum.^[567] In so far as the peculium can be shown to exist, the principal becomes liable for his dependant’s transactions in spite of specific restrictions or prohibitions to deal with the latter. The same Paul refers to a shop employee whose status has been clarified by a written sign (proscriptio) - he is not to be considered a business manager^[568] - but whose transactions nevertheless give rise to an actio de peculio: the standard of liability is admit­tedly restricted with regard to the actio institoria, but nonetheless potentially significant.^[569]

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More on the topic ACTIO DE PECULIO:

1. CHAPTER IX. THE SLAVE AS MAN. IN COMMERCE. ACTIO DE PECULIO. ACTIO TRIBUTORIA.
2. Chapter 10 Dumtaxat de peculio: What's in a Peculium, or Establishing the Extent of the Principal's Liability
3. ACTIO TRIBUTORIA
4. The legis actio procedure
5. The Legis Actio Procedure
6. The actio pro socio
7. The actio negotiorum gestorum contraria
8. Liability under the actio empti
9. Actio furti manifest!
10. The actio commodate contraria
11. The Legis Actio Procedure
12. Origin of the Actio Serviana
13. The actio de in rem verso
14. The actio legis Aquiliae and analogous remedies
15. The decline of the actio iniuriarum aestimatoria
16. The actio pigneraticia